UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELFS 


SCHOOL  OF  LAW 
LIBRARY 


^^--^>^>-^  .V*^vo-iN. 


THE   LAW 


OF 


MUNICIPAL   CORPORATIONS. 


CASES  ON  SELECTED  TOPICS 


EST 


THE  LAW 


OF 


MUNICIPAL    CORPORATIONS. 


BY 

JEREMIAH  SMITH, 

STORY    PROFESSOR    OF    LAW    IN    HARVARD    CNIVERSITT. 


CAMBRIDGE: 
THE  HARVARD  LAW  REVIEW  PUBLISHING  ASSOCIATION. 

1898. 


Copyright,  1898, 
Bt  Jeremiah  Smith. 

T 


^be  Clitcctfttie  fitz^i 

PRINTED  BY  H.  O.  HOUGHTON  &  CO. 
■  CAMBRIDGE,  MASS. 


PREFACE. 


The  selection  of  cases  has  been  made  with  special  reference 

to  the  wants  of   the  class   at  the   Harvard  Law  School,  where 

the  time  allotted  for  class-room  work  upon    the    entire    subject 

of   Municipal  Corporations  does  not  usually  exceed  ten  hours. 

Hence   some    important    topics    are    omitted    altogether,  while 

others  are  not  fully  dealt  with. 

JEREMIAH  SMITH. 

April,  1898. 


CC*  >"*,'''•'  ^'*■■'-^ 
00  4^^.  ^X 


TABLE  OF  CONTENTS. 


PAS* 

Table  of  Selected  Cases vii 


CHAPTER  I. 

Legislative  Coxtrol  over  Municipal  Corporations       ....         1 
Section      T.     Creation,  Annexation,  Division,  and  Abolition     ...  1 
Section    IL     Legislative    Control    over    Municipal    Property     and 
Expenditures  in  Cases  other  than  Division,  Annexa- 
tion, or  Abolition 21 


CHAPTER   n. 

Right3  and  Remedies  of  Creditors  —  How  Affected   by    Acts 

OF  THE  Legislature 54 


CHAPTER  III. 
Liability  for  Torts       107 

CHAPTER   IV. 

Implied  Power  — To  Contract  on  Credit  — To  borrow  Money 

—  To  Issue  Negotiable  Instruments 174 

CHAPTER  V. 
Express  Restrictions  on  the  Power  to  become  Indebted      .    .    195 


Vlll  TABLE    OF   CONTENTS. 


CHAPTER   VI. 

PAG> 

Rights  of  Bona  Fide  Holders  of  Kegotiable  Bonds    ....    220 


CHAPTER  VII. 

Liability  to  Account  for  Property  Received  upon  Contracts 

NOT  Authorized  by  Law 246 


TABLE   OF   SELECTED   CASES. 


FAOB 

Agawam  National  Bank  v.  South  Hadley 251 

Anthony  v.  Adams 135 

Asliley  V.  Port  Huron 142 

Bank,  Agawam  National,  v.  South  Hadley 251 

Bank,  Great  Falls,  v.  Farmington 186 

Bank,  Northern,  of  Toledo  f.  Porter  Township  Trustees        235 

Bank,  R.  R.  National,  v.  Lowell 249 

Barnard  i'.  Knox  County 210 

Barton  v.  Syracuse 141 

Berlin  v.  Gorham 1 

Bloomfield  v.  Glen  Ridge 14 

Board,  &c.  of  Indianapolis  v.  Center  Township 19 

Board,  &c.  of  Oshkosh,  State  ex  rel.,  v.  Haben 37 

Brenham,  City  of,  v.  German  American  Bank 189 

Brewis  v.  Duluth 86 

Bulkeley,  State  ex  rel.,  v.  Williams 21 

Buttrick  V.  Lowell 149 

Chandler  p.  Boston        2 

City  of  Brenham  v.  German  American  Bank 189 

City  of  Detroit  v.  Blackeby 112 

City  of  Indianapolis  v.  Center  Township 19 

City  of  Louisiana  v.  Wood 246 

City  of  Oshkosh  v.  Haben 37 

City  of  Valparaiso  v.  Gardner 195 

City,  Salt  Lake,  v.  HoUister 170 

Coloma,  Town  of,  v.  Eaves 223 

County,  Laramie,  v.  Albany  County 3 

Craft  V.  South  Boston  R.  R 252 

Darlington  v.  Mayor  of  New  York 40 

Davis  V.  Des  Moines 216 

Detroit,  City  of,  v.  Blackeby 112 

Eastman  v.  Meredith 123 

Gilboy  V.  Detroit 150 

Great  Falls  Bank  v.  Farmington 186 


X  TABLE  OF  SELECTED  CASES. 

PAGE 

Hackettstown,  Town  of,  i-.  Swackhamer 181 

Hayes  v.  Oshkosh 156 

Horner  v.  Coffey 54 

Humboldt  Township  v.  Long 231 

Indianapolis,  City  of,  v.  Center  Township 19 

Insurance  Co.,  Springfield,  v.  Keeseville 164 

Johnson  v.  !San  Diego 9 

Keasy  v.  Louisville 146 

Ketchum  v.  Buffalo 174 

Laramie  County  v.  Albany  County 3 

Le  Roy,  People  ex  rel.,  v.  Hurlbut 27 

Levy  V.  Mayor  of  New  York 121 

Litchfield  V.  Ballou 256 

Louisiana,  City  of  v.  Wood ' 246 

McDade  v.  Chester !     ...  120 

McDonald  v.  Mayor  of  New  York         252 

Marchand,  State  ex  rel.,  v.  New  Orleans 63 

Marsh  v.  Fulton  County 220 

Meriwether  v.  Garrett 88 

Miles  V.  Worcester 136 

Mills  V.  Brooklyn 139 

Mills  V.  Gleason 177 

Mobile  V.  U.  S.  ex  rel.  Watson 98 

Mobile  V.  Watson 98 

Mount  Hope  Cemetery,  Proprietors  of,  v.  Boston 46 

Mount  Pleasant  v.  Beckwith 79 

Mower  v.  Leicester 110 

Mulcairns  v.  Janesville 159 

Navigation  Co.,  Thompson,  v.  Chicago 160 

Nevins  v.  Peoria 144 

Northern  Bank  of  Toledo  v.  Porter  Township  Trustees 235 

Oshkosh,  City  of,  v.  Haben 37 

People  ex  rel.  Le  Roy  v.  Hurlbut 27 

Proprietors  of  Mount  Hope  Cemetery  v.  Boston 46 

Railroad  National  Bank  v.  Lowell 249 

Rauch  V.  Chapman 206 

Rees  V.  Watertown 68 

Rock  Island,  Supervisors  of,  v.  U.  S.  ex  rel.  State  Bank 58 

Russell  V.  The  Men  of  Devon 108 

Salt  Lake  City  v.  Ilollister 170 

Shapleigh  v.  San  Angelo 103 


TABLE  OF  SELECTED  CASES.  XI 

PAGE 

Spilman  v.  Parkersburg 201 

Springfield,  &c.  Jus.  Co.  v.  Keeseville 164 

State  ex  rel.  Board,  &c.  of  Oshkosh  v.  Haben 37 

State  ex  rel.  Bulkeley  r.  Williams 21 

State  ex  rel.  Marchand  v.  New  Orleans 63 

Supervisors  of  Rock  Island  v.  U.  S.  ex  rel.  State  Bank 58 

Sutliff  V.  Lake  County  Commissioners 241 

Thayer  v.  Boston 132 

Thompson  v.  Allen  County 74 

Thompson  Navigation  Co.  v.  Chicago 160 

Toledo,  Northern  Bank  of,  v.  Porter  Township  Trustees 235 

Town  of  Coloma  v.  Eaves 223 

Town  of  Hackettstown  v.  Swackhamer 181 

Tuttle  V.  Polk 217 

Valparaiso,  City  of,  v.  Gardner 195 

Von  Hoffman  v.  Quincy 60 

Walcott  V.  Swampscott 151 

Waldron  v.  Haverhill 153 

Wheeler  v.  Cincinnati 155 

Wild  V.  Paterson 157 

Worden  v.  New  Bedford 138 


I'J  -J^  ® 


S3UiL^ 


SELECT   CASES 

ON 

MUNICIPAL  CORPORATIONS. 


CHAPTER    L 
LEGISLATIVE  CONTROL  OVER  MUNICIPAL  CORPORATIONS.* 


Section.  I,  —  Creation^  Annexation,  Division,  and  Abolition, 

GORHAM.    ^^^--"^^-^ 'X'^^^'^X^ 


BERLIN 

34  New  Hampshir 


1856. 


266.2 


\>_aJPL3LiL>.  oo 


Assumpsit,  to  recover  for  supplies  furnished  for  the  support  o'  ^  >»»>*»II* 
Jeremiah  Harding,  and  his  wife  Nancy  Harding,  alleged  to  be  P^upers.;^^^^^^^^ 
having  their  settlement  in  Gorham.  saZ^IjlTvm 

The  plaintiffs  gave  evidence  that  when  Gorham  was  incorporated,rv3-/*JLfci_jL.K^ 
on  the  18th  of  June,  1836,  Jeremiah  Harding  resided  and  had  hisX.<s>-'^*jp-*^^  ^ 
home  in  the  place  which  was  incorporated  into  that  town.  The  court  ^^tP'*"^  ^^ 
ruled  that  if  he  so  resided,  he  would  thereby  gain  a  settlement  in  '^**-*'~*^  Jc 
Gorham,  although  no  legal  town  meeting  was  holden,  and  though  no^^^  ^'^^ 
town  officers  were  chosen,  before  his  removal.  Vjks>JL#„j,  ' 

The  defendant  excepted  to  the  foregoing  ruling,  and  moved  that  the  ■t>»-s*s,s^^ -v>,^ 
verdict  returned  for  the  plaintiffs  be  set  aside.        ^j->-a-a,  X^oji;^  ^t^ 

Jiellows  &  Fletcher^  for  defendant.  ^^^^"-*-^>»'^-aj^  '■»1t?we>>^ ,  it>j|_ 

G.  C.  Williams^  for  plaintiff.  ca_^v.*-».«k^  . 

Bell,  J.     By  the  statute  of  1828,  (Laws,  Ed.  1830,  p.  301,)  relat- 
ing to  the  settlement  of  paupers,  which  is  reenacted  without  material  ^'^«*^^-<^^  ^ 
change  in  the  Revised  Statutes,  ch.  65,  sec.  1,  cl.  6,  (Comp.  Stat.  157,) 
"all  persons,  dwelling  and  having  their  homes  in  any  unincorporated-' 
place  at  the  time  when  the  same  shall  be  incorporated  into  a  town,^ 


^  How  far  the  acts  of  the  Legislature  can  affect  the  rights  and  remedies  of  creditors       , 
of  municipal  corporations,  is  a  question  dealt  with  in  some  of  the  cases  given  under  '*"*'*-^~o**^ 
Chapter  II.    The  cases  in  the  present  chapter  discuss  the  question  of  legislative  con-  ^-<.ew__    X^ 


legislative 
The  arguments 


quest 
trol  as  affecting  the  municipalities  and  their  inhabitants.  —  Ed. 

2  Only  so  much  of  the  case  is  given  as  relates  to  a  single  point, 
are  omitted.  —  Ed.  •  _  ^  _  t^        -        w  a 


V^^JUrvJ 


CHANDLER   V.    BOSTON. 


shall  thereby  gain  a  settlement  therein."  It  was  objected  that  to  make 
an  incorporation  of  a  town  effectual,  there  must  be  a  legal  town  meet- 
ing holden  in  it ;  and  as  the  pauper,  though  he  resided  in  the  town  at 
the  passage  of  the  act,  removed  before  any  meeting  was  holden,  he  did 
not  gain  a  settlement.  This  objection  rests  upon  the  idea  that  the  rule 
r\which  applies  in  the  case  of  private  corporations,  that  the  act  is  in- 
^f'-*^-^:^~^i-v~.£ffectual  until  it  is  accepted  by  the  corporators,  governs  also  the  case 

of  public  corporations,  lik^  towns.     See  A.  &  A.  on  Corp.  68. 

■^  '^  *^>*J^     But  there  is  no  such  rule  in  the  case  of  public  corporations  of  a 

municipal  character.     The  acts  of  incorporation  are  imperative  upon 

all  who  come  within   their  scope.      Nothing  depends  upon   consent, 

unless  the  act  is  expressl}'  made  conditional.     No  man  who  lives  upon 

the  incorporated  district  can  withdraw  from  the  corporation,  unless  by 

a  removal  from  the  town ;  and  by  the  mere  passage  of  the  law  the 

town  is  completely  constituted,  entitled  to  the  rights  and  subjected  to 

the  duties  and  burdens  of  a  town,  whether  the  inhabitants  are  pleased 

si_Q^  I  _  >^or  displeased.     The  Xtegislature  has  entire  control  over  municipal  cor- 

(  porations,  to  create,  change,  or  deslro}'  them  at  pleasure,  and  tliey  are 

\  'absolutely  created  by  the  act  ofTncorporatloh7~without  the~acceptance 

I  ot"  the  people,  or  anyact  on  theTr  i)art',  unless'  otherwise  provided  by 

Wc  ,'at  ilscTr."    The  I^eople  v.  Wren,  4  Scam.  269  ;    Warren  v.  llayor, 

^c.  of  Charlestow?i,  2  Gray,  104  ;  Mills  v.  Williams,  11  Iredell,  558  ; 

The  State  v.    Curran,    7  Eng.   321  ;  Fire  Department  v.  Kip,  10 

Wendell,  267  ;   The  People  v.  Morris,  13  Wendell,  337. 

Judgment  on  the  verdict. 
CHANDLER   u.    BOSTON  J 

A1-,S^    ISSoT^^O-^iCi^^;?!^^^^^-     112  i»/assacAuse«s,  200.1 
■^  -vn-^  Colt,  J.     The  plaintiffs,  residents  and  tax  payers  in  the  town  of 

*^    *^      Brookline,  and  claiming  the  privileges  and  immunities  which  the}^  are 
^ —  entitled  to  under  a  town  government,  allege  by  bill  in  equity  that  the 
,^^^|r^^act  providing  for  the  annexation  of  that  town  to  the  city  of  Boston,  on 

certain  conditions,  is  a  violation  of  the  provisions  of  the  second  article 

.Q>^u.»4i  -  ^>f  the  amendments  of  the  Constitution  of  this  Commonwealth,  by  which 

^Ax-ft-j        power  is  given  to  the  General  Court  on  certain  conditions  to  charter 

^--•-^         cities.     An  injunction  is  asked  to  prevent  proceedings  by  the  city  or 

'*>  ^-'vvivjti^  town  under  the  act,  with  a  prayer  that  it  may  be  declared  void,  and  for 

general  relief.     To  this  there  is  a  general  demurrer  for  want  of  equit}'. 
The  question  whether  this  court  has  jurisdiction  to  grant  the  relief 

asked  in  favor  of  private  citizens  against  the  contemplated  alleged 

illegal  action  of  these  municipalities,  was  not  argued  and  is  not  con- 

Bidered  by  us. 

1  Statement  and  argnments  omitted.  —  Ed. 


LAKAMIE   COUNTY   V.   ALBANY   COUNTY. 


By  the  amendment  of  the  Constitution  relied  on,  power  is  given  to 
the  General  Court  to  erect  city  governments  in  any  "  corporate  town 
or  towns  of  this  Commonwealth,"  and  to  confer  such  powers  as  ma}'  be 
necessary  for  the  government  thereof,  with  the  proviso  that  "  no  such 
government  shall  be  erected  in  any  town  not  containing  twelve  thousand 
inhabitants,  nor  unless  it  be  with  the  consent  and  on  the  application  of 
a  majority  of  the  inhabitants  of  such  town  present  and  voting  thereon." 

The  bill  alleges  that  the  town  of  Brookline  did  not  contain  twelve 
thousand  inliabitants,  and  that  the  act  in  question  was  passed  by  the 
Legislature  without  first  obtaining  the  consent  and  without  the  appli- 
cation of  a  majority  of  the  inhabitants  of  the  town. 

The   court    are    of  opinion  that  the  demurrer  is  well  taken.     TheT/*^^^'  ^^^ 
control  of  the  General  Court  over  the  territorial  division  of  the  State  f    vi^**"*'^^*^ 
into  cities,  towns,  and  districts,  unless  controlled  by  some  specific  con-    p'VwN^vN.,   C 
stitutional  limitation,  must  necessarilv  be  supreme.     It  is  incident  to  / 
that  sovereign  power  which  regulates  the  performance  of  public  and 
political  duties.     The  rights  and  franchises  of  such  corporations  are) 
granted  only  to  this  end,  and  the}'  ma}'  be  modified  and  changed  in 
their  territorial    limits  as  public    convenience  and  necessity   require. 
The   inhabitants  do  not  derive  private  or  personal  rights  under   the 
act  of  incorporation  ;  they  acquire  no  vested  right  in  those  forms  oT 
municipal  government  which  exist  under  general  la"'''  '"  towng^  !^^  d^^:, 
tinguished  from  those  by  which  the  affairs  of  cities  are  rejjfiilated.     If 
injuriously  affected  by  legislative  action  upon  these  political  relations, 
within  constitional  limits,  the  courts  can  afford  no  remedy 

This  power  of  the  General  Court  it  was  not  the  intention  of  the 
amendment  in  question  to  limit  or  affect.  It  has  no  application  to  the 
annexation,  by  the  authority  of  the  Legislature,  of  a  town  or  part  of  a 
town  to  a  city  already  existing.  It_has^  express  reference  to  the  erec- 
tion of  a  city  government  in  the  place  of  a  town  government  witliin  the 
same  town  limits.  We  are  referred  by  the  defendants  to  many  a(;ts  of 
the  Legislature  annexing  towns  and  parts  of  towns  to  cities,  showing 
that  this  has  been  the  uniform  construction  of  the  article  in  question. 

Demurrer  sustained. 

LARAMIE  COUNTY  v.   ALBANY  COUNTY.*^ 


CjbA>Nr/J>.; 


C5^. 


1875.     92  U.  S.  307. 

Appeal  from  the  Supreme  Court  of  the  Territory  of  WyoSiing.  ^5'-~^^^-»-X  «S^Aj^ 

Mr.  W.  E.  Steele,  for  the  appellants.  A^  v.  v-.       .  .  •  r^  r^^JO^-e>-vj^-Os 

Mr.  A.  II.  Jftckson,  contra. 

Mr.  Justice  Clifford  delivered  the  opinion  of  the  court. 

Counties,  cities,  and  towns  are  municipal  corporations,  created  by 
the  authority  of  the  legislature  ;  and  they  derive  all  their  powers  from    ^^^^^—r^,^ 
the  source  of  their  creation,  except  where  the  constitution  of  the  State  ^^"'■^Jf-^'  "^^ 

auA3liX^  .  '^  oOJi_  ^^^^>t^x^3N-     ^>^^oXk,J_  "Jl.-U/w, 


\jVslA. 


4  LARAMIE  COUNTY  V.   ALBANY  COUNTY. 

Otherwise  provides.  Beyond  doubt,  they  are,  in  general,  made  bodies 
politic  and  corporate  ;  and  are  usuallj'  invested  with  certain  subordi- 
nate legislative  powers,  to  facilitate  the  due  administration  of  their 
own  internal  affairs,  and  to  promote  the  general  welfare  of  the  munici- 
pality. They  have  no  inherent  jurisdiction  to  make  laws,  or  to  adopt 
governmental  regulations  ;  nor  can  the}'  exercise  any  other  powers  in 
that  regard  than  such  as  are  expressly  or  impliedly  derived  from  their 
charters,  or  other  statutes  of  the  State. 

Trusts  of  great  moment,  it  must  be  admitted,  are  confided  to  such 
municipalities  ;  and,  in  turn,  they  are  required  to  perform  many  impor- 
tant duties,  as  evidenced  by  the  terms  of  their  respective  charters. 
Authority  to  effect  such  objects  is  conferred  b}'  the  legislature  ;  but  it 
is  settled  law,  that  the  legislature,  in  granting  it,  does  not  divest  itself 
of  any  power  over  the  inhabitants  of  the  district  which  it  possessed 
before  the  charter  was  granted.  Unless  the  Constitution  otherwise, 
j)rovideS;_the  legislature  still  has  authority  to  amend  the  charter  of 
such  a  corporation,  enlarge  or  diminish  its  powers,  extend  or  limit  its 
boundaries ,  divide  the  same  into  two  or  more,  consolidate  two  or  more 
into  one,  overrule  its  action  whenever  it  is  deemed  unwise,  impolitic, 
or  unjust,  and  even  abolish  the  municipality  altogetlier,  in  the  legisla- 
tive discretion.     Coole}'  on  Const.,  2d  ed.,  192. 

Sufficient  appears  to  show  that  the  complainant  county  was'  first 
organized  under  the  act  of  the  3d  of  Januar}-,  1868,  passed  by  the 
legislature  of  the  Territor}'  of  Dacotah,  which  repealed  the  prior  act  to 
create  and  establish  that  county.  "When  organized,  the  county  was 
still  a  part  of  the  Territor}',  and  embraced  within  its  territorial  limits 
all  the  territory'  now  comprising  the  counties  of  Laramie,  Albany,  and 
Carbon,  in  the  Territory  of  Wyoming,  —  an  area  of  three  and  one-half 
degrees  from  east  to  west,  and  four  degrees  from  north  to  south.  Verj' 
heavy  expenses,  it  seems,  were  incurred  b}'  the  count}' during  that  year 
and  prior  thereto,  greatly  in  excess  of  their  current  means,  as  more 
fully  explained  in  the  bill  of  complaint,  which  increased  the  indebted- 
ness to  the  sum  of  S28,000.  Other  liabilities,  it  is  alleged,  were  also 
incurred  by  the  authorities  of  the  count}'  during  that  period,  which 
augmented  their  indebtedness  to  the  sum  of  S40,000  in  the  aggregate. 

Pending  these  embarrassments,  the  charge  is,  that  the  legislature  of 
the  Territory  passed  two  acts  on  the  same  day,  —  to  wit,  Dec.  16, 
1868, — creating  the  counties  of  Albany  and  Carbon  out  of  the 
western  portion  of  the  territory  of  the  complainant  county,  reducing 
the  area  of  that  county  more  than  two-thirds  ;  that,  by  the  said  acts 
(treating  said  new  counties,  fully  two-thirds  of  the  wealth  and  taxable 
property  previously  existing  in  the  old  county  were  withdrawn  from  its 
jurisdiction,  and  its  limits  were  reduced  to  less  than  one-third  of  its 
fornier  size,  without  any  provision  being  made  in  either  of  said  acts 
that  the  new  counties,  or  either  of  them,  should  assume  any  proportion 
of  the  debt  and  liabilities  which  had  been  incurred  for  the  welfare  of 
the  whole  before  these  acts  were  passed. 


LARAMIE  COUNTY  V.    ALBANY  COUNTY.  5 

Payment  of  the  outstanding  debt  having  been  made  b}-  the  complain- 
ant count}-,  the  present  suit  was  instituted  in  her  behalf  to  compel  the 
new  counties  to  contribute  their  just  proportion  towards  such  indebted- 
ness. Attempt  is  made  to  show  that  an  equitable  cause  of  action  exists 
in  the  case  by  referring  to  the  several  improvements  made  in  that  part 
of  the  Territory  included  in  the  new  counties  before  they  were  incorpo- 
rated, and  b}'  referring  to  the  great  value  of  the  property  withdrawn 
from  taxation  in  the  old  count}-,  and  included  within  the  limits  of  the 
newl3--created  counties. 

Process  was  served,  and  the  respondents  appeared  and  filed  separate 
demurrers  to  the  bill  of  complaint.  Hearing  was  had  in  the  District 
Court  of  the  Territory,  where  the  suit  was  commenced  ;  and  the  coui't 
entered  a  decree  sustaining  the  demurrers,  and  dismissing  the  bill  of 
complaint.  Immediate  appeal  was  taken  by  the  complainant  to  the 
Supreme  Court  of  the  Territory,  where,  the  parties  having  been 
again  heard,  the  Supreme  Court  entered  a  decree  affirming  the 
decree  of  the  District  Court,  and  the  present  appeal  is  prosecuted 
b}'  the  complainant. 

Two  errors  are  assigned,  as  follows:  (1.)  That  the  Supreme  Court 
erred  in  affirming  the  decree  of  the  District  Court  sustaining  the  de- 
murrers of  the  respondents  to  the  bill  of  complaint.  (2.)  That  the 
Supreme  Court  erred  in  rendering  judgment  for  the  respondents. 

Corporations  of  the  kind  are  properly  denominated  public  corpora-' 
tlons^or  the  reason  that  they  are  but  parts  of  the  machiner}-  employed 
in  carrying  on  the  affairs  of  the  State  ;  and  it  is  well-settled  law, 
that  the  charters  under  which  such  corporations  are  created  may  be 
changed,  modified,  or  repealed,  as  the  exigencies  of  the  public  service 
or  the  public  welfare  may  demand..  2  Kent,  Com.,  12th  ed.,  305 
Angell  &  Ames  on  Corp.,  10th  ed.,  sect.  31  ;  McKim  v.  Odom,  3 
Bland,  407  ;  St.  Louis  v.  Allen,  13  Mo.  400;  Tfie  Schools  v.  Tatman, 
13  111.  27  ;   Yarmouth  v.  SkilHnffs,  45  Me.  141. 

Such  corporations  are  composed  of  all  the  inhabitants  of  the  Terri- 
tor}'  included  in  the  political  organization  ;  and  the  attribute  of  indi- 
viduality is  conferred  on  the  entire  mass  of  such  residents,  and  it  may 
be  modified  or  taken  away  at  the  mere  will  of  the  legislature,  according 
to  its  own  views  of  public  convenience,  and  without  any  necessit}'  for 
the  consent  of  those  composing  the  body  politic.  1  Greenl.  Ev.,  12th 
ed.,  sect.  831. 

Corporate  rights  and  privileges  are  usually  possessed  by  such  corpo- 
rations ;  and  it  is  equally  true  that  they  are  subject  to  legal  obligations 
and  duties,  and  that  the}' are  under  the  entire  control  of  the  legislature, 
from  which  all  their  powers  are  derived.  Sixtj'-five  years  before  the 
decree  under  review  was  rendered,  a  case  was  presented  to  the  Supreme 
Court  of  Massachusetts,  sitting  in  Maine,  which  involved  the  same 
principle  as  that  which  arises  in  the  case  before  the  court.  Learned 
counsel  were  employed  on  both  sides,  and  Parsons  was  Chief  Justice  of 
the  Court,  and  delivered  the  opinion.     First  he  adverted  to  the  rights 


6  LARAMIE  COUNTY  V.    ALBANY  COUNTY. 

and  privileges,  obligations  and  duties,  of  a  town,  and  then  proceeded 
to  say,  ^-If  a  part  of  its  territoQ'  and  inhabitants  are  separated  fron: 
lit  by  aiiucxatioa  to  another,  or  hy  the  erection  of  a  new  corporation^ 
JMd  iovmcv  corporation" still  retains  all  its  property,  powers,  rights,  and 
fmviKg'js,  and  remains  subject  to  all  its  obligations  and  .duties,  unless 
fk^Jm'p^ Tiew  pidvTsToh  should  be  made  by  the  act  authorizing  the  separa- 
tion." _  It  ifidhamy.  J^ortland,  4  Mass.  389.  """  *" 
Decisions  to  the  same  effect  have  been  made  since  that  time  in 
nearl}'  all  the  States  of  the  Union  where  such  municipal  subdivisions 
are  known,  until  the  reported  cases  have  become  quite  too  numerous 
for  citation.  Nor  are  such  citations  necessary,  as  the}'  are  all  one  way, 
showing  that  the  principle  in  this  country  is  one  of  universal  applica- 
tion. Concede  its  correctness,  and  it  follows  that  the  old  town,  unless 
the  legislature  otherwise  provides,  continues  to  be  seized  of  all  its 
lands  held  in  a  proprietary  right,  continues  to  be  the  sole  owner  of 
all  its  personal  propert}-,  is  entitled  to  all  its  rights  of  action,  is 
bound  b}'  all  its  contracts,  and  is  subject  to  all  the  duties  and  obli- 
gations it  owed  before  the  act  was  passed  effecting  the  separation. 

Suppose  that  is  so  as  applied  to  towns  :  still  it  is  suggested  that  the 
same  rule  ought  not  to  be  applied  to  counties  ;  but  it  is  so  obvious  that 
the  suggestion  is  without  merit,  that  it  seems  unnecessar}'  to  give  it 
an}' extended  examination.  County  of  Richland  \.  County  of  Laio- 
rence,  12  111.  8. 

Public  duties  are  required  of  counties  as  well  as  of  towns,  as  a  part 
of  the  machinery  of  the  State;  and,  in  order  that  they  may  be  able  to 
perform  those  duties,  they  are  vested  with  certain  corporate  powers ; 
but  their  functions  are  wholly  of  a  public  nature,  and  they  are  at  all 
times  as  much  subject  to  the  will  of  the  legislature  as  incorporated 
towns,  as  appears  by  the  best  text-writers  upon  the  subject  and  the 
great  weight  of  judicial  authority. 

Institutions  of  the  kind,  whether  called  counties  or  towns,  are  the 
auxiliaries  of  the  State  in  the  important  business  of  municipal  rule, 
and  cannot   have  the  least   pretension   to   sustain  their  privileges  or 
their  existence  upon  any  thing  like  a  contract  between  them  and  the 
legislature  of  the  Statt;,  because  there  is  not  and  cannot  be  any  reci- 
procity of  stipulation,  and  their  objects  and  duties  are  utterly  incom- 
patible with  every  thing  of  the  nature  of  compact.     Instead  of  that,  the 
constant  practice  is  to  divide  large  counties  and  towns,  and  to  consoli- 
date small  ones,  to  meet  the  wishes  of  the  residents,  or  to  promote  the 
public  interests,  as  understood  by  those  who  control  the  action  of  the 
legislature.     Opposition  is  sometimes  manifested  ;  but  it  is  everywhere 
acknowledged  that  the  legislature  possesses  the  power  to  divide  counties 
f  and  towns  at  its  pleasure,  and  to  apportion  the  common  property  and 
/the  common  burdens  in  such  manner  as  to  them  may  seem  reasonable 
land  equitable.     School  Society  v.  School  Society^  14  Conn.  469  ;  Bridge 
Co.  v.  EaH  TTartford,  \Q>  id.  172;  Hampshire  v.  Franklin,  16  Mass. 
76;  North  TIemsteadx.  Hemstead,  2  Wend.  109  ;   Monipelier  v.  Fast 


LARAMIE    COUNTY   V.    ALBANY   COUNTY.  7 

Montpelier,  29  Vt.  20;  Silly.  Corning,  15  N.  Y.  197;  People  v. 
Draper,  id.  549  ;  Waring  v.  Mayor,  24  Ala.  701 ;  Mayor  v.  The 
/State,  15  Md.  376  ;  Ashby  v.  Wellington,  8  Pick.  524  ;  Baptist  So.  v. 
Candia,  2  N.  H.  20  ;  Denton  v.  Jackson,  2  Johns.  Ch.  320. 

Political  subdivisions  of  the  kind  are  alwaj's  subject  to  the  general 
'aws  of  the  State  ;  and  the  Supreme  Court  of  Connecticut  decided  that 
l/he  legislature  of  that  State  have  immemorially  exercised  the  power  of 
dividing  towns  at  their  pleasure,  and  upon  such  division  to  apportion 
she  common  property'  and  the  common  burdens  as  to  them  shall  seem 
reasonable  and  equitable.  Granhy  v.  Thurston,  23  Conn.  419  ;  Yar- 
mouth V.  Skillings,  45  Me.  142;  Dangioorthy  y.  Dubuque,  16  Iowa, 
273  ;  Justices^  Opinion,  6  Cush.  577. 

Such  corporations  are  the  mere  creatures  of  the  legislative  will ;  and, 
inasmuch  as  all  their  powers  are  derived  from  that  soui'ce,  it  follows 
that  those  powers  may  be  enlarged,  modified,  or  diminished  at  anj'  time, 
without  their  consent,  or  even  without  notice.  The}"  are  but  subdivi- 
sions of  the  State,  deriving  even  their  existence  from  the  legislature. 
Their  officers  are  nothing  more  than  local  agents  of  the  State  ;  and  their 
powers  may  be  revoked  or  enlarged  and  their  acts  may  be  set  aside  or 
confirmed  at  the  pleasure  of  the  paramount  authority,  so  long  as  private 
rights  are  not  thereby  violated.     Mussel  v.  Reed,  27  Penn.  St.  170. 

Civil  and^  geographical  divisions  of  the  State  into  counties,  town- 
ships, and  cities,  said  Thompson,  C.  J.,  had  its  origin  in  the  necessities 
and  convenience  of  the  people  ;  but  this  does  not  withdraw  these  munic- 
ipal divisions  fi'om  the  supervision  and  control  by  the  State  in  matters 
of  internal  government.  Proof  of  that  is  found  in  the  fact  that  the 
legislature  often  exercises  the  power  to  exempt  property  liable  to  taxa- 
tion, and  in  many  other  instances  imposes  taxes  on  what  was  before 
exempt,  or  increases  the  antecedent  burdens  in  that  behalf.  It  changes 
county  sites,  and  orders  new  roads  to  be  opened  and  new  bridges  to 
be  built  at  the  expense  of  the  counties  ;  and  no  one,  it  is  supposed, 
disputes  the  exercise  of  such  powers  by  the  legislature.  Burns  v. 
Clarion  County,  62  Penn.  St.  425  ;  People  v.  Pinkney,  32  N.  Y.  393  ; 
St.  Louis  V.  Russell,  9  Mo.  507. 

Old  tovrns  may  be  divided,  or  a  new  town  may  be  formed  from  parts  1 
of  two  or  more  existing  towns  ;  and  the  legislature,  if  they  see  fit,  may 
apportion  the  common  property  and  the  common  burdens,  even  to  the 
extent  of  providing  that  a  certain  portion  of  the  property  of  the  old 
town  shall  be  transferred  to  the  new  corporation.  Bristol  v.  JSfew 
Chester,  3  N.  H.  521. 

In  dividing  towns,  the  legislature  ma}-  settle  the  terms  and  conditions 
on  which  the  division  shall  be  made.  It  may  enlarge  or  diminish  their 
territorial  liabilities,  may  extend  or  abridge  their  privileges,  and  may 
impose  new  liabilities.  Towns,  says  Richardson,  C.  J.,  are  public  cor- 
porations, created  for  purposes  purely  public,  empowered  to  hold  prop- 
erty, and  invested  with  many  functions  and  faculties  to  enable  them  to 
answer  the  purposes  of  their  creation. 


8 


LARAMIE  COUNTY  V.    ALBANY  COUNTY. 


vj  *juJL»Ji^/  There  must,  in  the  nature  of  things,  be  reserved,  bj'  necessary  impli- 
\^^f^  ^cation,  in  the  creation  of  such  corporations,  a  power  to  modify  them  in 
X^^^^^  such  manner  as  to  meet  the  public  exigencies.  Alterations  of  the  kind 
are  often  required  by  public  convenience  and  necessity  ;  and  we  have 
the  authority  of  that  learned  judge  for  saying  that  it  has  been  the  con- 
stant  usage,  in  all  that  section  of  the  Union,  to  enlarge  or  curtail  the 
power  of  towns,  divide  their  territory-,  and  make  new  towns,  whenever 
the  convenience  of  the  public  requires  that  such  a  change  should  be 
made. 

Half  a  centur}'  ago,  when  that  decision  was  made,  the  authority  of 
the  legislature  to  make  such  a  division  of  a  municipal  corporation  was 
deemed  to  be  without  doubt ;  and  the  same  court  decided  that  the 
power  to  divide  the  property  of  a  municipal  corporation  is  necessarily 
incident  to  the  power  to  divide  its  territory  and  to  create  the  new  cor- 
poration, Darlington  v.  3Iayor,  31  N.  Y.  195  ;  Clinton  v.  Railroad, 
24  Iowa,  475  ;  Layton  v.  Nev:i  Orleans^  12  La.  Ann.  516. 

Cases  doubtless  arise  where  injustice  is  done  b}^  annexing  part  of  one 
municipal  corporation  to  another,  or  by  the  division  of  such  a  corpora- 
tion and  the  creation  of  a  new  one,  or  by  the  consolidation  of  two  or. 
moresuch  corporations  into  one  of  larger  size.  Examples  illustrative 
of  these  suggestions  may  easil}^  be  imagined.  (1.)  Consolidation  will 
work  injustice  where  one  of  the  corporations  is  largely  in  debt  and  the 
other  owes  nothing,  as  the  residents  in  the  non-indebted  municipality 
must  necessarily  submit  to  increased  burdens  in  consequence  of  the 
indebtedness  of  their  associates.  (2.)  Like  consequences  follow  where 
the  change  consists  in  annexing  a  part  of  one  municipal  corporation  to 
another,  in  case  the  corporation  to  which  those  set  off  are  annexed  is 
greatly  more  in  debt  than  the  corporation  from  which  the}^  were  set  off. 

Hardshi[)s  may  also  be  suffered  by  the  corporation  from  which  a 
portion  of  its  inhabitants,  with  their  estates,  may  be  set  off,  in  case 
the  corporation  is  largely  in  debt,  as  the  taxes  of  those  who  remain 
must  necessarily  be  increased  in  proportion  as  tne  polls  ana  estates_ 
within  the  municipality  are  diminished^  Even  greater  injustice  may 
^^;*''*=n[u-^^rise  in  cases  where  the  legislature  finds  it  necessary  to  circumscribe 
^  ^^'W ■  ^^^^  jurisdiction  of  a  count}'  or  town  b}-  dividing  their  territory,  and 
creating  new  counties  or  towns  out  of  the  territory  withdrawn  from 
their  former  boundaries. 

Legislative  acts  of  the  kind  operate  differently  under  different  cir- 
cumstances. Instances  may  be  given  where  the  hardship  is  much  the 
greatest  towards  the  new  municipality,  as  where  the  great  bod}'  of  the 
property  and  improvements  are  left  within  the  new  boundaries  of  the 
old  corporation.  Other  cases  are  well  known  where  the  hardship  is 
mucli  greater  towards  the  old  corporation,  as  where  the  newly-created 
subdiyision  embraces  within  its  boundaries  all  the  public  buildings  and 
most  of  the  public  improvements  and  the  most  valuable  lands.  Cir- 
cumstances of  the  kind,  with  many  others  not  mentioned,  show  bej'ond 
doubt  that  such  changes  in  the  subdivisions  of  a  State  often  present 


JOHNSON   V.    CITY    OF   SAN   DIEGO. 


matters  for  adjustment  involving  questions  of  great  delicacy  and 
difficulty. 

Allusion  was  made  to  this  subject  by  the  Supreme  Court  of  New 
Hampshire   in   the   case  to  which  reference  has  already  been  made. 
3  N.  H.  534.     Speaking  of  the   power  to  divide  towns,  the  court  in 
that  case  say  that  the  power  in  that  regard  is  strictly  legislative ;  ojl  *iA-oj-» 
and  that  the  power  to  prescribe  the  rule  by  which  a  division  of  the  )  o^^^^^^^Qgji 
^ropertv^o£jhe_old  town  shall  be  divided  is  inoidpnf,  to  t,he  power  to  nvSiSt^ ,  j3C 
divide  the  territory,  and  is  in  its  nature  purely  lec/islative.     No  general  \  ^^=!if±^±r\: 
rule  can  be  prescribed  by  which  an  equal  and  just  decision  in  such  cases    ~?:^!±?=» 
can  be  made.      Such  a  division,  say  the  court  in  that  case,  must  be 
founded  upon  the  circumstances  of  each  particular  case  ;    and  in  that 
view  the   court  here  entirely  concurs.     Powers  v.  Commissioners  of 
Wood  County,  8  Ohio  St.  290  ;    Shelby  County  v.  Railroad^  5  Bush, 
228  ;    Olney  v.  Harvey,  50  111.  455. 

Regulation  upon  the  subject  may  be  prescribed  b}-  the  legislature ; 
but,  if  they  omit  to  make  any  provision  in  that  regard,  the  presumption  * 

mustbe  that  they  did  not  consider  that  any  legislation  in  the  piirticular^^/x'^^J^ 

"^  ^'' ^  '  '  ^'V^^'^ 

ni'(JPyi'lV  within  her  hew  irmTts,naCT  rsTe  all  debts  coil 

tracted  by  her  before  the  act  o£_jgP^^^P  was  passed.  Qld~debts 
s'b^  must' pay,  without  any  clalBA'''TOr  contribution  ;  and~the  new  sui> 
division  has  no  claim  to  any  portion  of  the  public  property  except  what 
falls  within  her  boundaries,  and  to  all  that  the  old  corporation  has  no 
claiti].     North  Hemstead  v.  Hemstead,  2  Wend.  134  ;    Dil.  on  Mun~ 

Hiyginhotham 


**A.'5D^^ 


-V^^Hs»- 


cOe 


Corp.,  sect.  128  ;    Wade  v.  Richmond,  18  Gratt.  583;    iliyginbottiam   "v>4Usji  rv> 
V.  Com.,  25  id.  633.  ■fco.i^SL-^^ 

Tested  by  these  considerations,  it  is  clear  that  there  is  no  error  in  ^"''^'^  *^^«>>J 
the  record.  ^^--»  Xa/vCv 

Decree  a-ffirmed.  ^"^  '^'^ 

JOHNSON   ET  AL.    V.  CITY  OP   SAN   DIEGOrHN:.^,yX  ^^^  \^ 

1895.     109  Ca/i>rma,  468.1     t^-|^^^-'>--*>--«»5t»_  t^b--*^ 

By  virtue  of  the  act  of  the  legislature  of  MarchlSTlSsSTand  of  a  VaII?^^[]^ 
vote  at  an  election  held  thereunder,  a  portion  of  the  territory  formerly  »r\  swl^Tol 
embraced  within  the  corporate  limits  of  the  city  of  San  Diego  was  ^./JL^^x^T" 
excluded  therefrom.  The  said  act  of  1889,  as  interpreted  by  the  court,  (X  ^^uOa.^ 
also  provided  that  the  segregated  territory  (which  was  known  as  the  %  ^»-a-v^  -i 
Coronado  beach)  should,  after  exclusion,  be  liable  for  its  pro  rata  "-A^^i-^a^J^ 
share  of  the  indebtedness  of  the  original  municipal  corporation  con-  ^^^-*»  ^-o"^ 
tracted  prior  to  such  exclusion.  *^^^>--^~rN,««  C. 

In  1893  {Statutes  1893,  p.  536)  the  legislature  passed  an  act  pro "J^^*^^^^*^ 
*  Statement  abridged  from  opiuion.     Arguments  omitted. —Ed.     ^*^cr-.- ■^i>»s,*_  ^J4J^I^ 


10  JOHNSON   V.   CITY   OF   SAN   DIEGO. 

vidin<y  for  "the  adjustment,  settlement,  and  payment  of  any  indebted- 
ness existing  against  any  city  or  municipal  corporation  at  the  time  ot 
exclusion  of  territory  therefrom  and  the  division  of  property  thereof." 

Under  this  act,  any  territory  which  "  has  been  or  shall  be  "  excluded 
from  any  municipal  corporation  shall  not  be  subject  to  the  payment  of 
any  indebtedness  existing  at  the  time  of  exclusion,  if  the  court  find 
that  the  value  of  the  property  belonging  to  said  municipal  corporation, 
and  which  remains  within  the  boundaries  thereof  after  such  exclusion, 
exceeds  the  value  of  municipal  propertj'  situated  in  such  excluded 
territory,  and  also  exceeds  the  pro  rata  portion  of  the  indebtedness 
of  the  municipal  corporation  due  from  such  excluded  territory  as 
shown  b}'  the  assessment  made  immediately  preceding  such  exclusion. 

Plaintiffs  availed  themselves  of  the  provisions  of  this  act  to  have  the 
court  determine  what  proportion,  if  an}',  of  the  bonded  indebtedness 
of  San  Diego  was  properly  chargeable  against  the  excluded  territory. 
Under  certain  findings  of  fact,  and  in  strict  accord  with  the  dictates 
of  the  statute,  the  court  adjudged  that  there  was  nothing  due  or  to 
become  due  from  the  excluded  territory  to  the  city. 

The  city  of  San  Diego  appealed  from  the  judgment. 

William  H.  Fuller  and  Clarence,  L.  Barber,  for  appellant. 

Gibson  <&  Titus,  and  Samuel  M.  Shortridge,  for  respondent. 

Henshaw,  J.  [After  stating  the  case.]  The  chief  contention  of  the 
defendant,  raised  upon  demurrer,  pressed  in  its  motion  for  a  nonsuit 
and  urged  against  the  judgment,  may  be  thus  stated :  The  property 
owners  of  the  city  and  the  property  owners  of  the  excluded  territory, 
when  in  accordance  with  the  permissive  act  of  the  legislature  (Stats. 
1889,  p.  356)  they  elected  to  segregate  Coronado  beach,  did  so  under 
a  contract  expressed  in  the  act  itself,  by  which  the  property  owners 
of  the  excluded  territory  were  allowed  to  remove  their  land  from  the 
jurisdiction  of  the  city  with  the  understanding  that  they  should  con- 
tinue to  pay  their  pro  rata  share  of  the  municipal  debts  existing  at 
the  time  of  the  exclusion  ;  that  the  rights  of  the  city  vested  under  this 
contract  cannot  be  destroyed  or  impaired  by  subsequent  legislation, 
and  that  therefore  to  the  parties  to  this  controversy  the  statute  of 
1893  has  no  applicability. 

The  question  that  is  left  for  consideration  is  that  of  the  power  of 
the  legislature  to  change  and  readjust  the  burden  of  such  an  indebted- 
ness, after  having  in  the  act  of  separation  declared  in  what  manner  it 
should  be  borne. 

Municipal  corporations  in  their  public  and  political  aspect  are  not 
only  creatures  of  the  state,  but  are  parts  of  the  machinery  by  which 
the  state  conducts  its  governmental  affairs.  Except,  therefore,  as 
restrained  by  the  constitution,  the  legislature  may  increase  or  diminish 
the  powers  of  such  a  corporation  —  may  enlarge  or  restrict  its  terri- 
torial jurisdiction,  or  may  destroy  its  corporate  existence  entirely, 
bays  Coolcy  :  "Restraints  on  the  legislative  power  of  control  must  be 


JOHNSON    V.   CITY    OF   SAN   DIEGO. 


11 


found  in  the  constitution  of  the  state,  or  they  must  rest  alone  in  the 
legislative  discretion.  If  the  legislative  action  in  these  cases  operates 
injuriously  to  the  municipalities  or  to  individuals,  the  remedy  is  not 
with  the  courts.  The  courts  have  no  power  to  interfere,  and  the  people 
must  be  looked  to  right  through  the  ballot-box  all  these  wrongs." 
(Cooley  on  Constitutional  Limitations,  6th  ed.,  229.) 

"A  city,"  says  Mr.  Justice  Field,  in  JVew  Orleans  v.  Clark,  95 
U.  S.  644,  "  is  only  a  political  subdivision  of  the  state,  made  for  the 
convenient  administration  of  the  government.  It  is  an  instrumen- 
tality, with  powers  more  or  less  enlarged  according  to  the  require- 
ments of  the  public,  and  which  may  be  increased  or  re^Dealed  at  the 
will  of  the  legislature." 

This  right  of  legislative  control,  arising  from  the  very  nature  of  the 
creation  of  such  corporations,  is  established  under  the  well-settled 
doctrine  that  such  corporations  have  no  vested  rights  in  powers  con- 
ferred upon  them  for  civil,  political,  or  administrative  purposes,  or 
as   Dillon  states   it:    '■^  Legislative   acts  respecting  the   political  and')^^^*t^ 


o;overnmental  powers  of  municipal  corporations  not  being  in  the  naturt 


of  co7it)'acts.  the  provisions  thereof  may  be  changed  at  pleasure  where 


the   constitutional 


ri_ghts 


of  creditors   and   others  are  not  invaded.." 


(Dillon  on  Municipal  Corporations,  4th  ed.,  sec.  63.) 

The  act  of  the  legislature  in  relieving  Coronado  beach  from  the  corpo-^ 
rate  control  of  San  Diego,  and  in  adjusting  the  burden  of  the  city's  debt,  \ 
was  undoubtedly  the  exercise  of  a  proper  power  directed  to  the  politi-  ' 
cal  and  governmental  affairs  of  the  municipality.  That  the  legislature 
b}'  the  terms  of  the  act  segregating  the  territory  had  the  right  to  dis- 
pose of  the  common  property',  and  provide  the  mode  and  manner  of 
the  payment  of  the  common  debt,  imposing  its  burden  in  such  propor- 
tions as  it  saw  fit,  is  a  proposition  undisputed  and  undisputable.  It  is 
equall}'  well-settled  law  that  when  the  act  of  segregation  is  silent  as  to 
the  common  property  and  common  debts,  the  old  corporation  retain^ 
all  the  j7roperty  within  its  new  boundaries,  and  is  charged  with  tlie 
payment  of  ail  of  the  del5ts7  Upon  these  two  propositions  the  cases 
are  both  numerous  and  harmonious.  (People  v.  Alameda  County, 
26  Cal.  6il  ;  Huffhes  v.  £Jwin(/,  93  Cal.  414;  Xos  Angeles  County 
v.  Orange  County,  97  Cal.  329  ;  Town  ofDepere  v.  Town  of  Bellevue, 
31  Wis.  120  ;  11  Am.  Rep.  602  ;  Laramie  County  v.  Albany  County, 
92  U.  S.  307  ;  Lycoming  v.  Union,  15  Pa.  St.  166  ;  53  Am.  Dec.  575 ; 
Mount  Pleasant  v.  Beckwith,  100  U.  S.  514  ;  Layton  v.  New  Orleans, 
12  La.  Ann.  515  ;  Beloit  v.  Morgan,  7  Wall.  619.) 

There  is  authority,  however,  holding  that  when  the  legislature  has 
spoken  in  the  original  act,  rights  vest  under  it  which  may  not  be  im- 
paired, and  it  is  upon  these  cases  that  appellants  rely. 

Thus  in  Boiodoinharn  v.  Richmond,  6  Me.  112,  19  Am.  Dec.  197, 
the  supreme  court  of  Maine  decided  in  1829  that  as  the  act  of  the 
legislature  dividing  the  town  of  Bowdoinham  and  incorporating  a  part 
of  it  into  a  new  town  by  the  name  of  Richmond,  enacted  that  the  latter 


>t^ 


12  JOHNSON    V.    CITY    OF   SAN    DIEGO. 

should  be  held  to  pay  its  proportion  toward  the  support  of  all  pauper* 
then  on  expense  in  Bowdoinham,  a  later  act  exonerating  the  new  town 
from  this  liabilit}'  was  void.  The  court  held  that  by  the  former  act  a 
vested  right  of  action  arose  in  favor  of  the  old  town  against  the  new, 
and  that  the  later  act  in  destroying  this  right  impaired  the  obligation 
of  the  contract  on  the  part  of  Richmond  created  by  the  first  act.  Just 
how  the  court  reached  the  conclusion  that  a  contract  was  created  b}- 
the  first  act  is  not  plain,  but  it  seems  to  have  been  based  somewhat 
upon  the  conviction  that  the  assent  of  the  old  town  was  necessar}'  to 
the  segregation. 

The  opinion,  however,  looks  for  authority  to  the  case  of  Hampshire 
County  V.  Franklin  County^  16  Mass.  76,  decided  in  1819.  In  that 
case  the  legislature  had  created  the  county  of  Franklin  out  of  territory' 
formerly  a  part  of  the  count}'  of  Hampshire.  The  act  was  silent  as 
to  the  disposition  of  the  public  property  and  the  public  debt.  By  an 
act  passed  two  years  later  the  legislature  provided  in  effect  that  if  at 
the  time  of  the  segregation  there  were  funds  belonging  to  the  county  of 
Hampshire  in  excess  of  its  debts,  the  new  county  should  be  entitled 
(A  ^jj^_    to  such  proportion  of  those  funds  as  the  assessed  value  of  the  property 

3^^j^^,^^  of  the  new  county  bore  to  the  assessed  value  of  the  property  of  the 
old.  The  supreme  court  decided  in  accordance  with  the  undoubted 
rule  that  as  the  first  act  was  silent  upon  the  subject,  all  of  the  com- 

[_     i^jrvr'"mon    property   within   its   limits    belonged    to  the  old  county,  which 

j&_^  was  likewise  charged  with    all  existing  debts.     It  further   held  that 

rights  vested  under  this  act,  and  that  the  later  act  providing  for  an 
apportionment  violated  these  rights  in  attempting  to  give  the  property 
of  Hampshire  to  Franklin  count}' ;  in  other  words,  that  the  later  act 
created  a  debt  from  Hampshire  to  Franklin  county,  which  before  had 
not  existed. 

It  is  to  be  noticed  that  in  this  case  the  original  act  was  silent  as  to 
common  propert}'  and  debts,  but  as  in  such  case  the  law  steps  in  and 
makes  disposition  of  them,  the  silence  was  deemed  equivalent  to  an 
affirmative  declaration  of  the  legislature  making  disposition  which 
could  not  afterward  be  modified. 

.^o-X:  ^t^NJk.  /  But  distinguished  as  are  the  courts  which  have  announced  this 
doctrine,  their  views  have  not  been  followed,  and  the  decisions  them- 
selves have  been  elsewhere  criticised  and  rejected,  until  it  may  be 
safely  said  that  it  is  tlic  general  rule  that  where  the  original  act  does 
not  make  dispositioiTof  the  common  property  and  debts  the  legislature 
may  at  an}'  subsequent  time  by  later  act  apportion  tUem  in  such  man- 
ner as  seems  to  be  just  and  equitable. 

Under  the  decisions  adopting  this  rule  the  theory  of  vested  rights 
and  contra(;tual  relations  is  rejected  as  l)cing  a  false  quantity  in  the 
dealings  of  the  sovereign  state  with  its  governmental  agents  and  man- 
datories. And  while  it  is  not  denied  that  the  state  may  make  a  con- 
tract with  a  municipal  corporation,  or  ma}^  permit  municipal  corpora^ 
tions  to  enter  into  binding  contracts  with  each  other,  which  contracts 


JOHNSON    V.    CITY    OF   SAN   DIEGO.  ^  13 

it  cannot  impair,  these  contracts  must  be  in  their  nature  private, ''^i^  ^-»  ^^*« 
although  the  public  may  derive  a  common  benefit  from  them,  and  the  \^y«^  ^  -vvvn 
contracting  cities  are  as  to  them  measured  by  the  same  rules  and  ^^-•='^^-  ^ 
entitled  to  the  same  protection  as  would  a  private  corporation.  The  y^l^^"*"^ 
subject  of  such  a  contract,  however,  can  never  be  a  matter  of  munici-^^^jLo-^ 
pal  polity  or  of  civil  or  political  power,  for  the  legislature  itself  cannot-  '^^"^ 
surrender  its  supremac\-  as  to  these  things  and  thus  abandon  its  pre-  naTS^"^ 
rogatives  and  strip  itself  of  its  inherent  and  inalienable  right  ofiAT^J^^^^]^^^^ 
control.  5L^>^-fc  VKi^jiki;     -^^  c^    ~^v.»Jo>j». 

Of  the  cases  so  holding,  either  directl}'  or  impliedly,  a  few  may  prof- 
itabl}'  be  mentioned.  [The  court  here  referred  to  Count}/  of  Rich- 
land V.  County  of  Lawrence,  12  111.  1  ;  Perry  County  v.  Comoay 
County,  52  Ark.  430  ;  Dunynore' s  Appeal^  52  Pa.  State,  430  ;  Layton 
V.  Keio  Orleans^  12  La.  Ann.  515  ;  and  Mayor  of  Baltimore  v.  /State, 
15  Maryland,  376.] 

Says  Dillon  on  Municipal  Corporations,  fourth  edition,  section  189  : 
"  But  upon  the  dicision  of  the  old  corporation,  and  the  creation  of 
a  new  corporation  out  of  a  part  of  its  inhabitants  and  territor}-,  or 
upon  the  annexation  of  part  of  another  corporation,  the  legislature 
may  provide  for  an  equitable  apportionment  or  division  of  the  prop- 
erty and  impose  upon  the  new  corporation,  or  upon  the  people  and 
territory  thus  disannexed,  the  obligation  to  pay  an  equitable  proportion 
of  the  corporate  debts.  The  charters  and  constituent  acts,  of  publi^ 
and  municipal  corporations'affe  not,  as  we  have  before  seen,  contracts, 
^    te  r7i(i7ir/t:d  <(t  the  pleasure  of  the  Ifjislafurt.,  subject 


^SyTyiUtJ  t'y^'Cl'afnts  of  special  constitutional  provisions,  if  any  there 
'BSr^SffTlt  is  an  ordinary  exercise  of  the  legislative  dominion  over 
such  corporations  to  provide  for  their  enlargement  or  division,  and, 
incidental  to  this,  to  apportion  their  propert}'  and  direct  the  manner  in 
which  their  debts  or  liabilities  shall  be  met  and  by  whom.  The  opin- 
ion has  been  expressed  that  the  partition  of  the  property  must  be  made 
at  the  time  of  the  division  of  or  change  in  the  corporation,  since  other- 
wise the  old  corporation  becomes,  under  the  rule  just  above  stated, 
the  sole  owner  of  the  property-,  and  hence  cannot  be  deprived  of  it  by 
a  subsequent  act  of  the  legislature.  But,  in  the  absence  of  special 
constitutional  limitations  upon  the  legislature,  this  view  cannot,  per- 
haps, be  maintained,  as  it  is  inconsistent  with  the  necessary-  suprem- 
acy of  the  legislature  over  all  its  corporate  and  unincorporate  bodies, 
divisions,  and  parts,  and  witli  several  well-considered  adjudications." 

To  the  same  general  effect  are  the  cases  of  Ijaramie  County  v. 
Albany  County,  supra  ;  Mount  Pleasant  \.  Beckwith,  supra  ;  Scituate 
V.  Weymouth,  108  Mass.  128;  Willimantic  School  Society  v.  J^irst 
School  Society,  14  Conn.  457  ;   Guilford  v.  Supervisors  A3  N.  Y.  143. 

In  this  state  the  power  of  the  legislature  to  make  such  subsequent 
adjustments  was  early  declared  in  People  v.  Alameda  County,  supra. 
Alameda  county  was  created  out  of  the  territory  of  Contra  Costa 
county  in  1853.     At  the  time  of  the  separation  Contra  Costa  county 


14 


BROOMFIELD    V.    GLEN   RIDGE. 


owed  for  a  bridge  which  had  been  constructed  upon  the  territory  set 
apart  to  Alameda  county.  The  original  act  made  no  provision  for  the 
payment  of  this  indebtedness,  which  thus  remained  a  charge  against 
the  old  count}'.  By  two  separate  later  acts  the  legislature  provided 
for  the  apportionment  of  the  debt,  putting  a  part  of  the  burden  upon 
Alameda  county.  These  acts  were  upheld  as  a  proper  exercise  of 
legislative  power. 

And,  indeed,  it  is  not  easy  to  see  how  the  opposite  view  can  be 
maintained.  Since  the  legislative  power,  within  constitutional  limita- 
tions, is  supreme  in  the  matter ;  since,  in  the  first  apportionment  the 
people  affected  are  entitled  to  no  voice  (except  through  their  repre- 
sentatives), and  since  the  act  of  the  legislature  is  not  in  the  nature 
of  a  contract,  it  cannot  logically  be  held  that  the  power  has  been 
exhausted  by  its  first  exercise.  The  right  still  remains  to  make  such 
future  adjustments  as  the  equities  may  suggest. 

Nor  in  the  operation  of  the  act  in  question  upon  the  city  of  San 
Diego  can  we  perceive  any  hardship.  It  had  at  the  time  of  the  segre- 
gation  six  hundred  thousand  dollars,  acquired  while  Coronado  beach 
was  a  part  of  its  territory,  and  partially  acquired,  doubtless,  by  tax- 
ation upon  this  land.  All  of  this  property  it  retains.  All  of  the 
moneys  evidenced  by  the  bonded  indebtedness  were  expended  within 
its  present  territorial  limits,  and  no  dollar  of  it  went  to  improve  the 
excluded  territor3\  Having  all  of  the  common  property  and  all  of  the 
ruits_of  the  common  debt,  it  is  certainly  not  onerous  or  oppressive 
that  it  should  be  asked  to  pay  for  what  has  been  expended  for  its 
xclusive  benefit.  In  a  certain  sense,  it  is  true  that  Coronado  beach 
was  also  benefited  by  these  expenditures.  In  the  same  sense  San 
Mateo  county  is  benefited  by  the  public  improvements  of  the  city  and 
count}'  of  San  Francisco,  but  it  has  never  been  asserted  that  for  such 
benefits  a  sister  count}'  should  be  called  upon  to  pay. 

The  judgment  and  order  appealed  from  are  affirmed. 

Harrison,  J.,  Temple,  J. ,  Van  Fleet,  J. ,  Garoutte,  J.,  and  Beatty, 
C.  J.,  concurred.  j^^^^^^      ,^_^ 

^*^s-Jl.  ^cs/w..,Jt>:^^     fBLOOMFIELD   v.   GLEN   RIDGE. 


V«9-^^**>^0Uw 


1896. 


•V* 


54  Neiv  Jersei/  E^julti/,  276.1 
Bill  in  equity,  by  Inhabitants  of  the  Township  of  Bloomfield  against 


the  Mayor  and  Council  of  the  Borough  of  Glen  Ridge ;  praying  for  an 
"  '^  ■  injunction,  restraining  defendants  from  interfering  with  the  complain- 
,,^;;^,^^^^  ant's  sewers  within  the  limits  of  the  borough  and  from  exercising  any 
Ir^jcZtfit'Tfianagcment  over  such  sewers.  The  allegations  of  the  bill  are  suffi- 
uiently  stated  in  the  opinion. 
I^efendants  demurred. 


Statement  abridged. —  Ed, 


1S."^ 


BLOOMFIELD   V.   GLEN   RIDGE.  15 

George  /S.  Hilton,  for  complainant. 

Joseph  G.  Gallagher  and  Joseph  Coult,  for  defendants. 

Reed,  V.  C.  It  appears  that  the  township  of  Bloomfield,  together 
with  the  city  of  Orange  and  the  township  of  Montclair,  built  an  outlet 
Bewer,  each  to  pay  its  proportion  of  the  expenses  ;  that  Bloonofield  has 
raised  its  proportion  b^^  issuing  bonds,  which  are  still  outstanding.  It 
appears  that  the  township  of  Bloomfield  also  constructed  lateral  sewers 
through  its  streets  and  paid  for  them  $30,8G3.97. 

It  appears  that  since  the  construction  of  these  sewers,  a  new  bor- 
ough has  been  organized,  called  the  borough  of  Glen  Ridge.  It  also 
appears  that  a  portion  of  the  territory  of  the  township  of  Bloomfield 
has  been  included  within  the  limits  of  the  new  borough,  and  that  a 
number  of  streets  in  which  these  lateral  sewers  were  placed,  are  now 
within  the  territorial  limits  of  the  borough.  The  question,  which  the 
bill  attempts  to  raise  is,  whether  the  right  to  control  the  use  of  such 
sewers  as  now  lie  within  the  borough,  has  passed  to  the  borough  gov- 
ernment, or  whether  it  still  resides  in  the  township  authority. 

The  contention  on  the  part  of  the  township  is,  that  it  paid  for  these 
laterals,  and  is  liable  to  pay  for  its  part  of  the  cost  of  the  main  sewer, 
by  means  of  which  the  laterals  became  usable ;  that  the  title  in  the 
laterals  still  resides  in  it,  and  that  it  has  the  right  to  control  and  use 
its  own  propert}-. 

It  is  stated  in  the  bill,  for  the  purpose  of  adding  to  the  force  of  this 
contention,  that  these  sewers  were  built  to  be  operated  as  a  single  sys- 
tem, and  that  it  has,  under  a  contract  with  the  township  of  Montclair, 
become  liable  to  pay  a  proportionate  share  of  the  expense  of  building 
and  maintaining  the  sewer  through  the  territory  of  Glen  Ridge.  I  do 
not  perceive  that  these  facts  can  influence  the  decision  of  thequestion 
in  hand^  The  sewers  must  be  regarded  as  any  other  corporate  prop- 
erty for  which  the  municipaUtv  has  paid,  or  for  which  it  is  liable"to~ 
pay,  either  bv  reason  of  its  outstanding  bonds  or  by  the  terms  of  a 
contract  still  outstanding.  It  is  corporate  property,  and  the  query  is, 
to  whom  does  the  right  to  use  and  control  it  belong  after  it  is  thrown 
into  the  new  municipality  ?  Many  of  the  questions  which  spring  out  of 
the  divisions  of  the  territory  of  a  municipality  in  respect  to  the  prop- 
erty of  the  old  municipality  are  entirely  settled.  For  instance,  it  is 
settled  that  the  legislature,  by  virtue  of  its  control  over  municipal 
corporations,  has  the  ability  to  fix  the  rights  of  the  new  and  the  old 
corporations  in  the  property,  and  to  adjust  the  burden  of  the  corporate 
debts.     Dill.  Mun.  Corp.  §  127. 

It  is  also  settled  that  where  no  legislative  adjustment  is  provided) ^-?^-*^^*^''^ 
for,  then  the  old  corporanoETremains  hable  for  all  the  debtsT  ^Z^^^rf  ^;2!^;^  ^ 
31un.  Corp.  §  128.  it  is  also  settled  that  all  transitory  property,*  \j-o...Au«^X 
such  as  bonds,  money  in  sinking  funds  and  property  of  that  class,  '"^  "S-^yXj^ 
and  all  real  estate  that  Ues  within  the  limits  of  the  old  corporation,  ^j!!^^^^^^: 
remains  the  property  of  the  old  municipality.       5o-«ru^.,^-*-a^s>a-^       V-«»'^-*'^5:-^ 

But  in  respect  to  property  used  for  public  purposes,  such  as  engine* 


16 


BLOOMFIELD   V.    GLEN   EIDGE. 


.tiiv^a^sA 


-dUu 


houses,  school-houses,  public  markets,  which  are  located  upon  lands 
which  full  within  the  limits  of  the  new  corporation,  there  exists  some 
contrariet}-  of  judicial  sentiment.  There  are  cases  which  hold  that 
the  old  corporation  is  not  stripped  of  its  title  to  such  propert}'.  In 
Whitier  v.  Sanborn^  38  Me.  32,  it  was  held  that  the  alterations  of  the 
lines  of  the  school  district,  whereby  a  school-house  was  left  in  another 
district,  would  not  change  the  right  of  propert}'  therein.  It  was  also 
said,  obiter,  in  School  District  v.  Richardson,  23  Pick.  62,  that  the 
alteration  of  the  lines  of  a  school  district  would  not  change  the  prop- 
ert}'  rights  of  the  old  district  in  a  school-house  thrown  outside  of  its 
limits. 

In  Hoard  o/  Health  of  Buena  Vista  Township  v.  City  of  East 
Saginaw,  45  Mich.  2bl,  land  had  been  conve^-ed  to  the  board  of 
health  in  trust  for  cemetery  purposes  for  the  township  of  Buena 
Vista.  Afterwards,  the  city  of  East  Saginaw  was  incorporated,  in- 
cluding the  cemetery.  The  court  held  that  there  was  no  common-law 
rule  by  which  property  can  be  transferred  from  one  corporation  to 
another  without  a  grant,  and  as  there  was  no  statute,  the  property 
was  unaffected  b}'  the  change  of  corporate  lines. 

In  Winona  v.  School  District  No.  82,  40  Minn.  13,  a  school-house,  by 
the  alteration  of  the  city  lines,  had  been  thrown  within  the  city  limits ; 
it  was  held  that  the  old  district  still  retained  title  to  the  school-house. 
The  opinion  of  this  case  reviews,  exhaustively',  the  cases  which  have 
dealt  with  the  subject.  These  cases,  as  is  perceived,  involve  the  ques- 
tion of  title  to  school-houses,  cemeteries,  and  ministers'  houses,  which, 
by  reason  of  the  manner  in  which,  and  the  purpose  for  which,  they 
are  usable,  may  possibly  be  distinguishable  from  other  kinds  of  munic- 
ipal property  lying  within  the  new  territory.  But  the  reasoning  upon 
which  some  of  the  cases  go,  viz.,  that  there  is  no  other  wa}'  by  which 
the  old  coi'poration  can  be  deprived  of  its  title  except  through  its  own 
grant  or  by  express  legislation,  seems  to  include,  within  the  rule  an- 
nounced, property  of  all  kinds. 

Opposed  to  the  theor3'  of  these  cases,  there  are  dicta  of  great  weight 
in  favor  of  an  opposite  rule  as  tiie  better  one,  viz.,  that  propottv  fixe^ 
to_thc  land  within  the  new  corporation  becomes  tie  prober L V  ot  ttiat 
municinalityT  Thecases  in  which  this  doctrme  has  been  asserted  or 
approWT^Ttre  the  following:  Bridge  Company  v.  East  Hartford,  16 
Conn.  171  ;  School  District  v.  Tapley,  1  Allen,  48  ;  Laramie  County 
V.  Albany  County,  92  U.  S.  315  ;  Mount  Pleasant  v.  Beckwith,  100 
U.  S.  525 ;  Board  v.  Board,  30  W.  Va.  424  ;  North  Ilemstead  v. 
Ilemstead,  2   Wend.  109. 

In  my  judgment,  the  cases  which  hold  that  the  ri^ht  to  control  this. 
kind  of  property  remains  still  in  the  old  corporation,  press  unduly  the 
notion  thaf  there  must  be  an  express  grant  or  express  legislation  to 
)a33  con troF  over  such  property  to^the  new  municipality.  The  title 
held  by  a  municipality  is  of  a  peculiar  kind.  It  is  held  by  the  cor- 
)oration   as   a   trustee   for   the  public.      Municipal   corporations   are 


BLOOMFIELD   V.    GLEN   RIDGE.  17 

organized  for  the  purpose  of  creating  agencies  for  the  purchase,  con- ^yJ>^t^^-»'^»-»^ 
gtruction,  and   operation  of  such  appliances  as  are  essential  to   the"^'^'"^'^^^'^'*-*^*-*^ 
health,  safety,  and  convenience  of  the  people  and  their  propert}-.      I'he  V*>^ajjCv3l  c>, 
appliances    so   created,   whether   engine-house,   market-house,  school- 
house,  lamps,  water-pipes,  h^'drants,  sewers,  are  so  distributed  as  to  be 
of  the  most  efficient  service  to  the  public  ;  they  are  brought  into  exis-<5>-  j. 

tence  to  be  so  used.  Now,  when  the  territorial  limits  of  a  con 
are  diinjni''^^^'^  ^Y  *^^  pvmsinn  ot  n  pnrf^fifsTernforyrthe  power 
control  ot  tne  public  agent  over  those  app^'^^]1tl{^f^lja,JgSfe^atfit^^p  f^^fiev  <:-'^^^'*^*^*> 
iTeWry-UtJlliiya  lIiulLb  ul  thy  [JJi-ijoralioii.  "ibis  is  admittedly  so,  unless J.-^i^^t^/^;;^ 
the  legislature  does  wtiat"T^in^ual,  confers  a  power  upon  its  agents  '^;j*k^«-^xOu.^ 
to  act  extra-territorially.  It  is  entirely  settled  that  the  powers  of  city'^**^  ^-^^  ^ 
officers  are  extended  or  restricted  in  conformity  with  the  change  of  the  ^  .  ^-"^ 
boundaries  of  a  municipalit}-.  Ehrgott  v.  Mayor  of  Nev)  Yoi'k,  96 
N.  Y.  264  ;  St.  Louis  Gaslight  Co.  v.  St.  Loxds,  46  Mo.  121  ;  Toion 
of  Toledo  V,  Edens,  59  7oi/;a,  352  ;  Goldwater  v.  Tucker.,  36  Mich. 
474  ;  Strauss  v.  Pontiac,  40  III.  301. 

It  follows,  therefore,  that  the  power  to  use  the  property  lying  out- 
side of  the  boundaries  of  the  old  corporation  for  municipal  purposes  ia 
extinct.  It  is  admitted  in  the  case  of  Wi?iona  v.  School  District  No.  82, 
supra,  that  the  old  corporation  held  only  the  bare  title  to  the  school- 
house  which  by  change  of  line  was  thrown  into  the  cit}'.  The  old 
corporation  could  only  sell  it  as  it  stood.  It  could  not  use  it  for 
the  purpose  to  which  it  had  been  built  and  devoted. 

Now,  as  a  matter  of  public  pohcy,  it  is  important  that  this  kind  of^ 
property  shall  be  continuously  employed  in  subserving  the  public  pur-  \ 
pose  for  which  it  was  created.     The  only  agency  existing  which  can  so  \ 
use  it,  is  that  which  has  sprung  into  existence  by  the  organization  or  / 
creation  of  the  new  cnrporfltinr^,     Now,  Jt  seems  to  me  quite  as  reason-   ^5^■^-'**^<»v> 
able_  to  sa}-  that  the  legislature,  by  conferring  the  power  to  create  the{  "•*=■>  *^>*'**^' 
new  corporation,  implicitly  conferred  a   power   to   employ  all   public  1^'^         ■*^^*^ 
property  found  within   its  limits,  as  it  is  to  say  that  it  meant  that  1  ^^ 
this  property  should  lie  idle.     And  if  it  be  said  that  the  new  cor-/  ^^\  * 
poration  may  purchase  it,  it  is  answered,  who  is  to  fix  the  price?  and, 
while  negotiations  are  pending,  who  is  to  control  and  use  this  public 

Now,  the  legislature  undoubtedly,  if  its  attention  was  called  to  this^^^^j^^^\^^^<; 
matter,  would  fix  upon  some  method,  judicial  or  otherwise,  by  which 
the  distribution  of  municipal  property  and  municipal  debts   could  be 
adjusted  in  all  instances  like  the  one  under  consideration.  )   fvA^ 

But,  in  the  absence  of  such  legislation,  I  think  that  the  doctrine 
which  I  have  announced  is  the  most  conducive  to  the  public  interest. 
Nor  is  it,  as  a  rule,  more  inequitable  than  the  other.     When  the  prop- "^-.j^c -^'v« 
erty  which  falls  within  the  new  corporation  is  still  to  be  paid  for,  it  is,  ~^  *^  ""^r^ 
of  course,  inequitable  that  the  whole  burden  of  payment  should  fall  Vy^-^-^w^ 
upon  the  old  corporation.     But  it  is  quite  likely  that  such  property,  -^f"^!^^^^^ 


as  I  understand  is  the  case  in  respect  to  the  lateral  sewers,  has  been 


^aA. 


CA'sJR 


V_x^^3^ 


18  BLOOMFIELD    V.    GLEN    RIDGE. 

already  paid  for.  In  such  case,  the  people  in  the  new  government 
have  paid  their  proportion  of  the  expenses,  and  where  the  property 
is  of  a  kind  to  be  distributed  tlirough  the  territorial  limits  of  the  old 
corporation,  like  lamp-posts,  hydrants,  water-pipes,  and  sewers,  it  is 
quite  probable  that  the  new  corporation  gets  no  more  by  the  altera- 
tion of  municipal  lines  than  its  inhabitants  have  paid  for. 

Upon  the  assumption,  therefore,  that  the  borough  and  the  township 
ft.re  distinct  corporationis^  I  jim  of  the  opinion  that  the  complainants 
Uave  exhibited  no  ground  for  the  relief  the}'^  claim. 
The  complainants,  however,  insist  that  the  parties  to  this  suit  do 
^       ^not  stand  on  the  footing  of  distinct  municipalities. 
o       __j\        The  contention  is  that  the  borough,  organized  within  the  township 
^^Y'*^^^™i^S'  does  not  exclude  the  control  of  the  township  over  all  the  objects 


of  local  government ;  that,  like  the  city  of  Plainfield  and  the  village 
__^V  "  of  Flemington  and  certain  commissions,  onl}'  a  portion  of  the  local 
yx.4»i£x4>»v-,  government  is  confided  to  it,  while  the  residue  remains  in  the  larger 
municipality. 

Now,  it  is  undoubtedl}'  true  that  the  boroughs,  as  originally  formed 
under  the  act  of  1878,  did  not  possess  local  powers  co-extensive  with 
those  of  townships.  Many  of  the  objects  of  local  government  still 
remained  in  the  township ;  but  as,  by  supplements  to  the  acts  of 
1878,  the  powers  of  the  borough  government  were  enlarged  from 
time  to  time,  so,  pari  jjassu,  those  of  the  townships  were  diminished, 
and  the  township  governments  were  necessarily'  excluded  from  any 
control  over  the  subjects  which  were  thus  confided  to  the  borough 
government. 

This  consequence  necessarilj'  results  from  the  well-settled  doctrine, 
th at  tliere  cannot  be  two  municipal  corporations  for  tlie  same  piir^v>,a£a^ 
with^co-extensive  powers  of  government,  at  the  same  time,  over  the 
same  territorv.  (xrant.  Vorp.  18;  JJiU.  Mun.  Corp.  {Hd  ed.)  §  184; 
J^aterson  v.  /Society,  4  Zab.  385  ;  I^i?ig  v.  Passmore,  3  T.  JR.  343. 

Now,  among  the  subjects  which  have  been  confided  to  the  borough 
government  under  supplements  to  the  general  act,  is  that  of  control 
over  sewers.  P.  L.  of  1893,  pp.  271,  460;  P.  L.  of  1892,  ^jo.  96, 
397. 

The  effect  of  investing  boroughs  with  this  control  is  to  exclude  the 
control  of  any  other  municipal  corporation  within  the  limits  of  the 
borough. 

It  is,  therefore,  apparent  that  the  discussion  with  respect  to  the 
constitutionality  of  the  act  of  1895,  which  act  purported  to  sever 
the  territory  of  the  boroughs  organized  under  the  act  of  1878  from 
the  tcrritoiy  of  the  township,  is  unimportant,  for,  unless  all  the  sup- 
plements which  have  conferred  powers  upon  the  boroughs  are  uncon- 
stitutional, the  act  conferring  control  over  sewers  must  be  regarded 
as  valid,  and  it,  without  further  legislation,  excludes  the  township 
from  exercising  any  control,  in  respect  to  this  branch  of  municipal 
government,  within  the  limits  of  the  borough. 


CITY   OF   INDIANAPOLIS   V.   CENTER   TOWNSHIP. 


19 


I  therefore  regard  the  two  municipalities,  in  respect  to  the  matter 
now  under  consideration,  as  entirely  distinct.  This  view  strips  the 
complainants,  as  already  remarked,  of  the  right  to  relief  under  this 
bill. 


\^    »a>^ 


BOARD  OF  SCHOOL  COMMISSIONERS  OF  THE  CITY  OF 
INDIANAPOLIS  v.  CENTER  TOWNSHIP  AND  CENTER 
SCHOOL  TOWNSHIP.  9 .  ,  0-:X^  os^ 

1896.     143  Indiana,  391.1  ^_jtf^j....,J^ 

Suit  to  recover  possession  and  quiet  the  title  in  plaintiff  of  several  -r^,^  ^ty. 
parcels  of  real  estate,  and  to  compel  the  trustee  of  the  township  to  -^wvju.  ^,J;i^ 
convey  the  same  to  plaintiff.  The  parcels  in  question  were  tracts  upon  ^>-«^>^  jv->. 
which  school-houses  had  been  erected  for  the  use  of  the  schools  of  ruX^-v*^  \» 
Center  township ;  and  which  afterwards,  by  an  ordinance  of  annex-  .  +v^**^ 
ation,  had  become  embraced  within  the  limits  of  the  city.  Vrvjj4tr  vi*J>  ' 

Center  School  township  claimed  that,  because  said  township  was  in  yy^v^^v,jk,OL», 

debt  for  a  part  of  the  cost  of  such  land  and  school-houses,  the  plaintiffs  '-^ .JL. .  ^, 

ought  to  pa}'  a  part  of  that  indebtedness  proportioned  to  the  amount  of  ^lbJ^.  j^^ 
taxable  property  withdrawn  from  the  school  township  by  the  annexation.  dS-^^X^Z..^ 
The  decree,  in  substance,  was  that  the  trustee  of  the  school  township  \i«-\-  \>*3 
should  convey  the  real  estate  to  plaintiff,  upon  the  payment  b}'  plain-  <^-«»'<*'^>^5i^- 
tiff'to  him  of  $4,821.48  ;  and  that  plaintiff  pay  to  the  school  township  ^>»  ■^'^-•>-'^*-« 
the  said  sum  of  $4,82L48.  Plaintiff  appealed.  ^^J^^^J^^J^ 

C.  A.  Dryer.,  for  appellant.  vX-*-»~ajx^>.j»_^    ;;^,^  J[^o-«IXk.»-«. 

Ayres  <&  Jones,  for  appellees.  A---*^-*r-;^  Jb->j.l5uAj>^lZI!^7^^ 

McCabe,  J.  .  .  .  The  demurrer  to  the  different  paragraphs  of  the 
cross-coraplaint,  therefore,  presents  the  question  whether  the  annexationo>-  oo^^v^vy*^ 
of  territory  to  a  city,  which  territory  contains  a  school-house  and  lot  be^ 
longing  to  the  school  township  from  which  the  territory  is  taken,  affords 
a  cause  of  action  in  favor  of  such  school  township  against  the  school 
corporation  of  such  city,  either  for  the  value  of  such  property,  or  for  a 
part  of  any  unpaid  indebtedness  of  such  school  township,  incurred  in  i  \^ 
either  the  pun;hase  of  the  lot  or  the  erection  of  the  house.  '  ^^^^^==**- V 

If  there  can  be  a  recovery  by  the  school  township  for  any  part  of  the  '^^^^^'^^'^'^J-^ 
unpaid  indebtedness  on  account  of  the  cost  of  such  school  building  in  ^^^^^-*-  J 
the  absence  of  statutory  authority,  then  no  reason  is  perceived  why  J"^-*^'^'^-*^ 
there  could  not  be  a  recovery  against  the  city  school  corporation  for"^*^*^^  ^~^^ 


VjOsJ 


the  full  value  of  the  property  regardless  of  any  indebtedness. 

The  question  is  not  a  new  one  in  this  court,  though  there  is  not  per 
feet  harmony  in  its  decisions  thereon. 


Vv-^ 


^*-'^*>^v 


The  whole  argument  of  the  learned  counsel  for  appellees  in  support  \/Ljl 

1  Statement  abridged.     Part  of  opinion  omitted.  —  Ed. 


r. 


20  CITY    OF   INDIANAPOLIS   V.    CENTER   TOWNSHIP. 

of  the  ruling  upholding  the  cross-complaint  is  based  on  the  idea  that  it 
would  be  highl}-  inequitable  to  allow  the  city  school  corporation  to  get 
the  benefit  of  the  taxes  collected  and  to  be  collected,  to  defray  the 
expense  of  purchasing  the  lots,  and  building  the  school-houses  without 
contribution,  and  that  the  courts  have  power  to  adjust  such  equities  by 
decreeing  contribution  against  the  cit}'  school  corporation.  But  the  diffi- 
culty in  the  way  of  that  argument  is  that  contribution  may  result  in 
forcing  the  taxpa3ers  residing  in  the  annexed  territory  to  pay  twice,  or 
to  pay  their  proportion  of  the  tax  a  second  time. 

Here  the  Legislature  has  made  provision  that  the  title  to  school  prop- 
erty embraced  in  annexed  territory  shall  vest  in  and  be  conveyed  to  the^ 
school  corporation  of  the  annexing  city,  without  making  an}'  provision 
for  payment  of  any  part  of  the  value  of  such  scbooi-nouses  or  any  part 
of  any  indebtedness  of  the  school  township  created  on  account  thereof^ 

gmjj-pmqjnino;  unpaid. 

But  it  is  insisted  that  in  so  far  as  the  statute  is  retrospective  it  is 
void  as  to  vested  rights.  The  act  is  expressly  retrospective,  and 
tlierefore  applies  to  the  annexation  involved  in  this  case.  Retrospec- 
tive laws  may  be  passed  by  the  Legislature  when  they  do  not  destroy 
or  interfere  with  vested  rightg.  Andrews  v.  Russell,  7  Blackf.  474  ; 
Reed  v.  Coale,  Admr.,  4  Ind.  283  ;  Pritchard  v.  Spencer,  2  Ind.  486  ; 
FHnn  v.  Parsons,  Admr.,  60  Ind.  573  ;  Johnson  v.  Board,  etc.,  107 
Ind.  15  ;  Doioell  v.  Talbot  Paving  Co.,  138  Ind.  675. 

The  act  did   not   interfere  with  vested   rights,  because  the  school. 

township  only  held  the  title  as  we  have  seen  as  trustee,  and  the  StaCe* 

bas  the  right,  as  it  did  in  this  act,  to  cDangeTlie  trustee.     Indeed,  CEe 

^ct  does  nothing  more  than  i-e-enact  what  this  court  had  already  de- 


clared the  law  to  be  in  the  cases  we  have  cited  in  this  opinion  upon 
that  point. 

The  question  presented  by  the  cross-complaint  is  the  same  precisely 
as  if  tlie  trustee  of  Center  township  had  promptly  conveyed  the  school- 
houses  and  lots  in  question  to  tlie  city  school  corporation,  in  obedience 
to  the  above  mentioned  act,  and  then  sued  tlie  city  school  corporation 
1  for  contribution  as  he  has  in  tlie  cross-complaint.     The  problem  would 
.  i-^     ^e,  as  it  now  is,  solved  by  recurring  to  the  elementary  principle  that 
^*T^^^  "no  person  or  corporation  can  be  made  liable  to  pay  money  outside  of  a 
,,,_^^j(jj^_  I  tort,  without  a  contract,  express  or  implied,  to  that  effect,  unless  such 
■>~^'«jvj»Jt      liability  is  created  by  positive  law  or  legislative  enactment.     13  Am. 
^;^^]^''^''"*^   and  Eng.  Ency.  of  Law,  287,  and  authorities  there  cited. 

There  is  no  room  for,  and  there  is  no  contention  that  the  facts  estab- 
'  lish  such  a  contract,  either  express  or  implied,  on  the  part  of  the  city 
school  corporation.  Such  city  school  corporation  had  nothing  to  do. 
and  could  have  nothing  to  do,  in  bringing  the  annexed  territory  into 
tlie  city,  even  if  that  would  create  an  implied  obligation  to  contribute. 
Moreover,  its  objections  and  protest  against  the  annexation,  if  it  had 
any,  would  have  been  impotent  and  powerless  to  prevent  the  same. 


BULKELEY   V.   WILLIAMS. 


21 


R.  S.  1894,  sections  3808-3809.     Acts  1891,  p.  137,  sections  37-38. 

Tiierefore..ij;;,,iku^cife,Hi;!mf]l  finninrflitiiftn  in  t^'^  ^"«^  ■«  ^^  ^'^  mnrip^ 

liable  to  contrihute.  tliat   liability  mnst  hft  nrpatpH  hv  t.hp   dpnvpp  "7^1 


Uable  to  contrihute.  that   liabiliU'^^m^^  created  by  the  deciiet 

"llie  coiiit,  us  was  attempted  to  be  done  lotm^^^^^^ig^gj^g^U^ 
such  liability  bein^toeex^cis^  ot   a  legislative   fuacl 

exerglgfi, 


WBlch   t^eeons^TuidonforDicts  tli^cour^sTo 


To  do 


"Section 


^^^rrrrry^v^];;;;;^ 


cOUfCSTre?!  in  attomptil^ 

1^4,  section  yb.  It  loiTows  trom  what  we  have  said  that  the  special 
term  erred  in  overruling  the  demurrer  to  the  several  paragraphs  of  the 
cross-coinplaint,  and  consequently  the  general  term  erred  in  affirming 
that  part  of  the  judgment  resting  on  the  cross-complaint,  namely,  the 
judgment  against  the  appellant  for  $4,821.48. 

That  part  of  the  judgment  is  reversed,  and  the  judgment  in  favor  of 
the  appellant,  the  cit}'  school  corporation,  for  the  conveyance  to  it  of  C->i3cu 
the  school-houses  and  lots  is  affirmed,  freed  from  the  condition  to  pay  Wjfc-    ftu^JUk 
said  sum.  X'^^s-'v**"X-o 

The  cause  is  remanded,  with  instructions  to  sustain  the  demurrer  to  <3lslL>-*w  . 
the  several  paragraphs  of  the  so-called  answer,  but  which  is  a  cross' 
complaint  or  counterclaim. 


^t^■^ 


\^'<,«^ 
yA 


Section  II.  —  Legislative  Control  over  Municipal  Property  and 
Expenditures  in  Cases  other  than  Division,  Annexation,  or 
Abolition.       £»-«^^.  s^-*-  <r\^v8 ^n  — -»-*^  t>^. -■^>-'»-^^^^*^ 


STATE     EX     KEL. 


1896 


BULKELEY 

68  Conn.  131.1 


V.   WILLIAMS.  r>,|^,  -^,  .      r\     -♦-  ^ 


Application  for  a  writ  of  mandamus,  to  enforce  the  payment  by  the  x^X*^  ^-^^i 
Treasurer  of  the  town  of  Glastonbuiy  of  an  order  drawn  upon  him  by^^.  iit>-Tj-'.tr 
the  Commissioners  of  the  Connecticut  River  Bridge  and  Highway  Dis-  o^jt^rT^s 
trict,  for  the  proportionate  share  required  of  the  town,  under  the  Act  *~^'     "   ^ 


of  June  28,  1895,  for  the  maintenance  of  the  highway  under  the  charge *>  ^"^-^WLaj.^J^ 
of  the  said  Commissioners.  "^ 


In  1887  an  Act  was  passed  by  the  legislature  for  the  purpose  of  >^*^^*»^*-«  i  <^ 
making  a  toll-bridge  across  the  Connecticut  river  a  free  public  highway  ^*'~*'^-«»>'-»^  V. 
and  throwing  the  burden  of  its  support  on  the  towns  which  would  be  ^^~|f^J^^  »' 
especially  benefited  by  such  a  change.  Upon  proceedings  in  the  lTJ^^^^"^ 
Superior  Court  under  the  above  act,  and  after  notice  to  the  towns,  it, 
was,  in  1889,  judicially  determined  that  certain  towns,  including, 
Glastonbury,  would  be  specially  benefited  ;  and  that  Glastonbury's  pro- 
portion of  the  expense  should  be  ^i%.  After  the  toll-bridge  had  thus  2^2^-  V-ov-v. « 
been  converted  into  a  free  public  highway,  the  legislature  in  1893 -y^^"''^  .  ^ 
enacted   that   the   highwa}',  which   included   the   bridge   and    its   ap-  i-^      Vt''^":^. 

^  The  statement  is  abridged,  and  some  points  iu  the  case  are  omitted.  —  Ed 
1 1^  ~Aa^ 


22  BULKELEY   V.   WILUAMS. 

proaches,  should  thereafter  be  maintained  by  the  State  at  its  expense. 
Subsequently,  while  a  new  bridge  was  being  erected  at  the  expense  ot 
the  State,  the  old  bridge  was  accidentally  destroyed  by  fire.  There- 
after, on  May,  24,  1895,  an  Act  was  passed  repealing  the  Act  of 
1893,  and  requiring  certain  towns,  including  Glastonbury,  to  maintain 
in  future  the  highwaj^  across  the  Connecticut  river  where  the  old 
bridge  formerly  was,  with  the  proper  approaches,  and  to  erect  a  new 
bridge  whenever  necessary,  and  maintain  the  same,  contributing  to  the 
expenses  in  the  proportions  established  by  the  judgment  of  1889.  On 
June  28,  1895,  an  Act  was  passed  "  Creating  the  Connecticut  River 
Bridge  and  Highway  District."  By  this  Act,  Glastonbury  and  four 
other  towns  were  constituted  a  corporation,  under  the  above  name,  for 
the  construction  and  maintenance  of  a  free  public  highwa}'  across  the 
Connecticut  river  at  Hartford,  as  described  in  the  decree  of  1889. 
Four  citizens  of  Hartford  and  one  from  each  of  the  other  towns  were 
appointed  commissioners  for  said  district,  with  authority  to  maintain 
said  free  public  highway* ;  and,  whenever  public  safety  or  convenience 
may  require,  to  erect  new  bridges  at  the  expense  of  said  towns,  at  a 
cost  not  exceeding  $500,000.  The  board  was  authorized  to  issue 
bonds  of  the  district ;  and  each  of  the  five  towns,  in  order  to  meet  the 
principal  and  interest  on  the  bonds  and  to  pay  for  the  ordinar}-  sup- 
port and  maintenance  of  the  highway,  was  required  to  contribute  in 
certain  proportions  ;  the  share  of  Glastonbury  being  y§o.  The  orders 
of  the  commissioners  for  the  pa3'ment  of  money  were  made  obligatory 
upon  the  towns,  and  the  courts  were  empowered  to  enforce  these 
orders  b}^  mandamus.  No  part  of  the  aforesaid  highway  was  within 
the  town  of  Glastonbury. 

In  the  Superior  Court,  judgment  was  rendered  for  the  relators  and 
the  respondent  appealed. 

Lewis  E.  Stanton  and  JoJm  M.  Bud;  for  respondent.^ 

Lewis  Sperry  and  George  P.  McLean^  for  relators. 

Baldwin,  J.  .  .  .  The  judgment,  brought  up  for  review  by  this 
appeal,  directed  the  issue  of  a  writ  of  peremptorj'  mandamus,  to  en- 
force the  payment  by  the  treasurer  of  the  town  of  Glastonbury  of  an 
order  drawn  upon  him  by  vote  of  the  Commissioners  for  the  Connecti- 
cut River  Bridge  and  Highway  District  for  yg^  of  the  sum  of  $500. 
required  to  meet  expenses  incurred  by  the  board  for  the  ordinary  sup- 
port and  maintenance  of  the  highwa}'  under  their  charge.  In  behalf 
of  the  town  it  is  contended  that  it  cannot  thus  be  compelled  to  con- 
tribute, at  the  dictation  of  officials  not  of  its  own  choosing,  to  the  cost 
of  maintaining  a  highway  which  is  wholly  outside  of  its  territorial 
bounds. 

It  has  undoubtedly  been  the  general  polic}'  of  the  State  to  leave 
the  expense  of  public  improvements  for  highway  purposes  to  the 
tletermi nation  of  the  municipal  corporations  within  the  limits  of  which 

1  Ariiuiiieiits  omitted.  —  Ed. 


BULKELEY  V.  WILLIAMS.  23 

the  highwa3'S  ma}'  be  situated,  and  to  charge  them  only  with  such  ob- 
ligations as  may  be  incurred  in  their  behalf  by  officers  of  their  own 
selection.     But  when  the  State  at  large  or  the  general  public  have  an \  vM^*>^->-»»-i 
interest  in  the  construction  or  maintenance  of  such  works,  there  is  p^?'""V"^ 
nothing  in  our  Constitution,  or  in  the  principles  of  natural  Justice  upon  (V^ii^^rjt- 
which  it  rests,  to  prevent  the  General  Assembly  from  assuming  the 
active  direction  of  affairs  by  such  agents  as  it  may  see  fit  to  appoint, 
and  apportioning  whatever  expenses  may  be   incurred   among   sucL 
municipalities  as  may  be  found  to  be  especially  benefited,  without  first 
stopping  to  ask  their  consent.     Norwich  v.    Count t/  Commissioners,  J 
13  Pick.  60 ;  Rochester  v.  Roberts,  29  N.  H.  360 ;  Philadelphia  v. 
Field,  55  Pa.  St.  320 ;   Simon  v.  Rorthup,  27  Or.  487,  40  Pac.  Rep. 
560.     As  against  legislation  of  this  character,  American  courts  gQn- 
erall}'  hold  that  no  plea  can  be  set  up  of  a  right  of  local  self-govern- 
ment, implied  in  the  nature  of  our  institutions.     People  v.  Draper,  15 
N.  Y.  532,  543;  People  y.  .Flagg,  46   N.  Y.  401,  404;    Common- 
wealth v.  Plaisted,  148  Mass.  375,  19  Northeastern  Rep.  224. 

The  Constitution  of  Connecticut  was  ordained,  as  its  preamble  de- 
clares, by  the  people  of  Connecticut.     It  contemplates  the  existence  of 
towns  and  counties ;  and  without  these  the   scheme   of  government, 
which  it  established,  could  not  exist.     It  secured  to  these  territorial 
subdivisions  of  the  State  certain  political  privileges  in  perpetuit}-,  and 
among  others  the  election  by  each  county  of  its  own  sheriff,  and  by 
each  town  of  its  own  representatives  in  the  General  Assembly,  and  its 
own  selectmen  and  such  officers  of  local  police  as  the  laws  might  pre-     , 
scribe.     It  secured  them,  because  it  granted  them ;  not  because  they     - 
previously  existed.     Towns  have   no  inherent  rights.     They  have  al-'^^^''^*^^^- 
ways  been  the  mere  creatures  of  the  Colony  or  the  State,  with  such 
functions   and   such   only  as   were   conceded   or   recognized   by  law. 
Webster  v.  Hancinton,  32  Conn.  181.     The  State  possesses   all   the 
powers  of  sovereignty,  except  so  far  as  limited  by  the  Constitution  of 
the  United  States.     Its  executive  and  judicial  powers  are   each  dis- 
tributed among  different  magistrates,  elected  some  for  counties,  and 
some  for  the  State  at  large ;  but  its  whole  legislative  power  is  vested 
in  the  General  Assembly.     Our  Constitution  imposes  a  few,  and  only 
a  few,  restrictions  upon  its  exercise,  and  except  for  these  the  General 
Assembly,  in  all  matters  pertaining  to  the  domain  of  legislation,  is  as 
free  and  untrammelled  as  the   people   would   themselves  have   been, 
had  they  retained  the  law-making  power  in  their  own  hands,  or  as 
they  are  in  adopting  such  constitutional  amendments    from    time  to 
time  as  they  think  fit.     Pratt  v.  Allen,   13  Conn.  119,  125  ;  Booth  v. 
I'own  of  Woodbury,  32  id.   118,  126.     It  has  not  infrequently,  from 
early  Colonial  days,  made  special  provision  for  particular  highways  or 
bridges,  and  in  several  instances  by  the  appointment  of  agencies  of  its 
own  to  construct  or  alter  them  at  the  expense  of  those  upon  whom  it 
thought  fit  to  cast  the  burden.     1  Col.  Rec.  417  ;  5  id.  80  ;  13  id.  605, 
630  ;  1  Private  Laws,  282,  285. 


24 


BULKELEY   V.   WILLIAMS. 


By  legislation  of  this  ntiture  the  city  of  Hartford  was  recently  com- 
pelled to  contribute  a  large  sum  for  a  separation  of  grades  at  the 
Asylum  street  railroad  crossing,  and  we  held  the  Act  to  be  not  uncon- 
stitutional. Woodruff  V.  Catlin,  54  Conn.  277  ;  Woodruff  v.  JSew 
York  <b  JV.  E.  E.  E.  Co.,  59  id.  63,  83. 

That  so  many  laws  of  this  general  description  have  been  enacted  by 
the  General  Assembl}',  both  before  and  since  the  adoption  of  our 
Constitution,  is,  of  itself,  entitled  to  no  small  weight  in  determining 
whether  they  fall  within  the  legitimate  bounds  of  what  that  instrument 
describes  as  "legislative  power."  Maynard  v.  Hill^  125  U.  S.  190, 
204  ;   Wheeler's  Appeal,  45  Conn.  306. 

One  of  those  to  which  reference  has  been  made  (1  Priv.  Laws,  p. 
285),  required  the  town  of  Granby  to  build  and  maintain  a  bridge 
across  the  Farmington  river,  half  of  which  was  in  the  town  of 
Windsor,  and  was  adjudged  to  be  valid  by  this  court,  notwithstanding 
then  as  now  the  General  Statutes  provi(^ed  that  bridges  over  rivers 
dividing  towns  should  be   built  and  maintained  at   their  joint   cost. 

ranhy  v.    Thurston,  23  Conn.  416.     There  is  no  principle   of  free 

government  or  rule  of  natural  j u stice  which'  demands  that  the  support 

of  highways  and  bridges   shall  be  imposed  orAy  on  those  territorial 

ubdivisions  of  the  State  in  which  they  are  situated.     If  it  be  required 

them,  it  is  only  by  virtue  of  a  statute  law,  which  the  legislature  can 
an-  or  repeal  at  pleasure.  Chidsey  v.  Canton,  17  Conn.  475,  478. 
The  burden  is  one  that  the  legislature  can  put  on  such  public  agencies 
as  it  maj:  deem  equitable,  and  transfer  from  one  to  another,  from  time 
to  time,  as  it  may  judge  best  for  the  public  interest.  Doio  v.  WaJce- 
fdd,  103  Mass.  267  ;  Agawam  v.  Hampden,  130  Mass.  528  ;  County 
of  3IoUle  V.  Kimball,  102  U.  S.  691,  703  ;  Washen  v.  Ballitt  County, 
110  U.  S.  558. 

The  defendant  urges  that  taxation  and  representation  are  indis- 
solubly  connected  by  the  underlying  principles  of  free  government,  and 
that  this  (the  commission  which  directs  the  affairs  of  the  Bridge  Dis- 
trict and  makes  requisitions  on  the  towns  for  such  funds  as  it  deems 
necessary,  not  having  been  selected  by  them)  is  a  sufHcient  defense 
against  the  payment  of  the  order  which  has  been  drawn  upon  him, 
since  it  can  be  paid  only  out  of  moneys  raised  by  town  taxation. 

Taxes  can,  indeed,  under  our  system  of  government,  only  be  im- 
posed by  the  free  consent  of  those  who  pay  them,  or  their  representa- 
tives ;  and  for  purposes  which  they  approve.  But  the  inhabitants  of 
these  towns  were  represented  in  the  General  Assembly,  by  which  the 
laws  now  brought  in  question  were  enacted.  The  legislative  power, 
after  defining  the  general  purposes  of  taxation,  to  confer  upon  local 
public  corporations  tlic  riglit  to  determine  the  amount  of  the  levy  within 
tlie  territory  under  their  jurisdiction,  is  unquestionable;  and  in  its  ex- 
ercise it  is  immaterial  whether  the  corporations,  to  which  that  function 
is  entrusted,  or  between  which  it  is  shared,  be  called  counties  or  towns, 
school  districts  or  bridge  districts.     When  a  levy  is  voted,  the  action 


BULKELEY    V.   AVILLIAM3. 


25 


is  corporate  action,  deriving  its  obligatory-  force  wholly  from  the 
authority  of  the  State.  Towns  cannot  tax  their  inhabitants  for  any 
purpose  except  by  virtue  of  statute  law.  That  law  for  many  yeavs 
required  them  annually  to  tax  for  moneys  to  be  paid  over  to  the  State 
treasurer  for  State  expenditures.  It  now  requires  them  to  tax,  as 
occasion  may  require,  for  moneys  to  be  paid  over  to  the  count}'  treas- 
urer for  count}'  expenditures.  It  can  equally  require  any  town  or 
towns  to  tax  for  moneys  to  be  paid  over  to  the  treasurer  of  a  bridge 
or  highwa}'  district,  in  which  the}'  are  included,  for  district  expendi- 
tures. Kingman  et  al.^  Petitioners,  153  Mass.,  566,  27  Northeastern 
Rep.  778. 

It  has  been  suggested  that  in  Colonial  times  it  was  the  right  of  the 
inhabitants  of  every  town,^  themselves,  to  order  the  municipal  duties 
assigned  to  them  and  choose  the  officers  by  whom  only  it  could  be 
placed  under  a  pecuniary  obligation,  and  that  this  is  one  of  those 
rights  and  privileges  '•'•  derived  from  our  ancestors,"  to  '•'•  define,  secure 
and  perpetuate  "  which  our  Constitution  was  adopted,  and  to  which  its 
preamble  refers.  Jf  it  can  be  said  that  such  a  right  ever  existed,  it 
was  not  one  of  the  nature  of  those  which  were  described  by  the  framci-s 
of  the  Constitution.  They  were  speaRing  oi  rignrs  personal  to  the, 
individual,  as  a  citizen  of  a  free  commonwealth ;  civil  as  distin- 
guished from  politicalj  and  belonging  alike  to  each  man,  woman  and 
child  among  the  people  of  Connecticut.  Such  of  them  as  they  deemed 
most  essential  they  proceeded  to  specify  in  the  Declaration  of  Rights, 
and  here  we  find  asserted  (Art.  1,  §  2)  that  "  all  political  power  is  in- 
herent in  the  people,  and  all  free  governments  are  founded  on  their 
authority  "  and  subject  to  such  alterations  in  form,  from  time  to  time, 
"as  they  may  think  expedient."     If  there  were  any  absolute  rio-ht  irf 


^Jt  ^^^-'■'■S 


the  inhabitants  of  our  towns  to  regulate  their  town  finances  and  affai 

which   was   superior   to    all   legislative    control,  it   would    be  a  orpnt 

"  political  power."     It  would  create  an  imperium  in  imperio,  and  xn-l 

vest  a  certain  class  of  our  people  —  those  qualified  to  vote  in  town^^       .    - 

meetings  —  with  the  prerogative  of  defeating  local  improvements  which  v*^^' 

the  General  Assembly  deemed  it  necessary  to  construct  at  the  expense 

of  those  most  benefited  by  them,  under  the  direction  of  agents  of  the 

State,  unless  the  work  were  done  and  its  cost  determined  under  town 

control.     No  set  of  men  can  lay  claim  to  such  a  privilege  under  the 

Constitution  of  Connecticut. 


Nor  is  it  of  any  importance  that  in  1893  the  State  had  taken  the 
maintenance  of  the  bridge  upon  itself.  This  was  merely  a  gratuitous 
act,  with  no  element  of  a  contract,  and  gave  rise  to  no  vested  rights, 
except  such  as  might  accrue  from  obligations  on  the  part  of  the  State 
subsequently  assumed  by  virtue  of  its  provisions. 

The  defendant  also  urges  that  the  Act  of  June  28th  violates  the 
XlVth  Amendment  of  the  Constitution  of  the  United  States,  in  that  it 


26 


BULKELEY   V.    WILLIAMS. 


process  by  which  it  is  now  sought  to  compel  jh^ 
sum  ih  controveisv  is  due  processT   The  town 


deprives  the  town  of  Glastonbury  of  property  without  due  process  of 
law,  and  denies  to  it  the  equal  protection  of  the  laws.  No  right,  as 
against  a  State,  to  the  equal  protection  of  the  laws  is  secured  to  its 
municipal  corporations  by  this  amendment^  which  can  limit  in  any  way 
legislation  to  charge  them  with  public  obligations.  Nor  have  their 
inhabitants,  in  their  capacity  of  members  of  such  corporations,  any 
greater  rights  or  immunities.  JVew  Orleans  v.  JVew  Orleans  Water 
"WorFs  Co.,  142  U.  S.  79,  93.  No  property  of  the  town  of  Glaston- 
bury has  been  or  is  to  be  taken.  Booth  v.  Town  of  Woodbury,  32 
Conn.  118,  130  ;  Railroad  Company  v.  County  of  Otoe,  16  Wall. 
67,  676.  A  duty  to  lay  taxes  for  publ^j^fijaiimoae&.hfff  ^p*^"  _^ri«*^^] 
and  for  reasons  alreadystatpd,  Ht^jyfaijliJiaBmfitffBf  ^^  ^he  General  As- 
sembly to' create  that  duty,  as  it  was  crffatifidcmuT^^"'  "^^^ppdincrs  jvere 
due  proceedings :  the 

defendant  to  pay  the  sum  in  conlrpyeisv  is  due  pre 
an  lound  no  claim,  under  the  Constitution  of  the  United  States,  any 
ore   than   under  that  of  Connecticut,  to  such   right  of   local  self- 
overnment  as  precludes  the  General  Assembly  from  exacting  this 
ayment,  notwithstanding  the  demand  comes  from  another  municipal 
orporation,  the  Bridge  District,  in  choosing  whose  members,  or  direct- 
ing  whose   affairs,   it  has  had   no  share.     Giozza   v.    Tiernan,  148 
U.  S.  657,  662. 

We  have  spoken  of  the  Bridge  District  as  a  municipal  corporation, 
although  it  may  not  answer  the  common  law  definition  of  that  term, 
since  not  composed  of  the  inhabitants  of  any  territory  as  such.  In 
modern  times  corporations,  both  public  and  private,  have  often  been 
constituted  by  a  union  of  other  corporations.  Such  was  the  United 
States  of  America  after  the  Declaration  of  Independence,  and  until  the 
adoption  of  their  present  Constitution.  Such  are  the  various  counties 
of  this  State,  once  quasi  corporations  and  now  full  corporations,  the 
constituents  of  which  have  always  been  the  several  towns  within  their 
boundaries.  The  power  of  the  Bridge  District  over  the  towns  com- 
posing it  is  no  less  than  it  would  have  been,  had  their  inhabitants  in- 
dividually been  made  its  members.  The  district  and  the  towns  are 
alike  agencies  of  the  State  for  governmental  purposes  and,  whether 
they  be  styled  public  or  municipal  corporations,  their  relations  to  it 
and  to  each  other  are  the  same,  and  equally  subject  to  modification  at 
its  pleasure. 

The  defendant  having  refused  to  pay  an  order  lawfullj'  drawn  upon 
him  in  behalf  of  the  Bridge  District,   the  writ  was   properly  issued 
against  him. 
Torrance,  J.,  and  Fenn,  J.,  concurred. 

Andrkws,  C.  J.,  delivered  a  dissenting  opinion  (68  Conn.  p.  157 
to  p.  177),  in  which  Hamersley,  J.,  concurred. 


LE    ROY   V.   HURLBUT. 


27 


/O 


X>oai 


PEOPLE  EX  REL.  LE  ROY  v.    HURLBUT  et  al. 

1871.     24  Michigan,  44.^  /^  r^ 

Informations  in  the  nature  of  qico  warranto.        SI5— v:5z. 

These  proceedings  are  brought  to  test  the  right  of  the  members  of' 
Che  boards  of  water  commissioners,  and  of  sewer  commissioners  of  the  !3Cc 
city  of  Detroit,  to  continue  to  hold  their  respective  offices  after  the 
taking  effect  of  the  act  establishing  a  board  of  public  works ;   and 
the  questions  raised  relate  to  the  validity  of  said  act. 

The  acf*  transfers  to  the  board  of  public  works  all  the  powers, 
duties,  and  responsibilities  of  the  old  board  of  water  commissioners, 
the  board  of  sewer  commissioners,  and  of  the  commissioners  of  grades 
and  plans.     It  gives  the  board  charge  and  control  of  the  construction  l\_Q^k 

of  all  public  buildings  except  school-houses,  public  sewers,  drains,  and ^ 

water-works.  It  authorizes  the  board  to  take  proceedings  to  con- ^\  ^^''^'*-*^ 
demn  property  by  the  right  of  eminent  domain ;  to  contract  for  the  ^'~^<*-^  '  ^ 
performance  of  the  various  works  confided  to  their  charge,  to  employ  v>-'^«-N-rs.*^ 
workmen,  to  draw  upon  the  proper  funds  for  payment  of  expenses, *~%-iL'  *\lOd 
and  to  issue  bonds  in  certain  cases  to  obtain  means  for  carrying  onCL^,^,^.^^,^,^^^^^,,. 
any  of  said  works.  %r<^_A_  tf\  ^ 

The  first  members  of  the  board  are  appointed  by  the  legislature,  and  (^Jt^i^.,^  ^ 
in  the  act  itself.  They  are  four  in  number,  and  are  to  hold  by  classi-  <^jyj,<wj^l^-rT, 
fied  terms  of  two,  four,  six,  and  eight  years.  All  vacancies,  whether  t)y-«pJ,,^^VrVit 
expiration  of  term  of  ser\dce  or  otherwise,  shall  be  filled  by  the  com  Pj-Lv  I 

mon  council  of  the  city,:  and  no  person  shall  be  eligible  for  said  boarc' 
who  is  not  a  freeholder  in  said  city  and  a  qualified  elector. 

e/".  P.  Whittemore,  Lyman  Cochrane.,  E.  W.  Meddaugh,  and 
Theodore  Komeyn,  for  respondent. 

Samuel  T.  Douglass,  Geo.  V.  iV!  Zoihrop,  and  J.  Logan  Chip- 
man.,  for  relators. 

CooLEY,  J.  [After  discussing  other  points.]  "We  have  before  us  a 
legislative  act  creating  for  the  city  of  Detroit  a  new  board,  which  is  to 
exercise  a  considerable  share  of  the  authority  usually  possessed  by 
officers  locally  chosen ;  to  have  general  charge  of  the  city  buildings^  iXX?dDodd^ 
property  and  local  conveniences,  to  make  contracts  for  public  works  yya__ 
on  behalf  of  the  city,  and  to  do  many  things  of  a  legislative  character  \  c^^^- 
which  generally  the  common  council  of  cities  alone  is  authorized  to  do.».  - 
The  legislature  has  created  this  board,  and  it  has  appointed  its  mem^^^''"*^^"'^:^^^::?^ 
bers ;  and  both  the  one  and  the  other  have  been  done  under  a  cl ai m V^'-*'**-*-''*-*^^ 
of  right  which,  unless  I  wholly  misunderstand  it,  would  justify  that^^^-^^^  (Lo~, 
body  in  taking  to  itself  the  entire  and  exclusive  government  of  the  J^s«»>-  SlLe«_« 
city,  and  the  appointment  of  all  its  oflScers,  excepting  only  the  judicial,  ^f^l  -  «^^ 

*  Three  opinions  omitted  ;  also  the  arguments.  —  Ed.  "    '^^^^"^^  *2 

^  This  statement  of  the  provisions  of  the  act  is   abridged  from  the  opinion  ol  ^^^^'^'^-^'vA — • 
Chrisiianct,  J.,  24  Mich.  p.  55-58,  and  p.  74.  —  Ed.   o'^^N-'N.<-».»--ev-»v_r>-»....^3LJLjA-    c-**^^ 


v^ 


v^-<- 


AkjjJljSL^ 


C-^^ 


28  LE    EOY    V.    HUELBUT. 

for  which,  bj'  the  constitution,  other  provision  is  expressly  made. 
And  the  question,  broadlj-  and  nakedly  stated,  can  be  nothing  short 
of  this :  AVhether  local  self-government  in  this  state  is  or  is  not  a 
mere  privilege,  conceded  b}-  the  legislature  in  its  discretion,  and  which 
may  be  withdrawn  at  any  time  at  pleasure?  I  state  the  question  thus 
broadly  because,  notwithstanding  the  able  arguments  made  in  this 
case,  and  after  mature  deliberation,  I  can  conceive  of  no  argument  in 
support  of  the  legislative  authority  which  will  stop  short  of  this  plenary 
;ind  sovereign  right. 

Now,  it  must  be  conceded  that  the  judicial  decisions  and  law  writers 
generally  assert  that  the  state  creates  the  municipal  bodies,  endows 
them  with  such  of  the  functions  of  corporate  life  and  entrusts  them 
with  such  share  in  the  local  government,  as  to  the  legislative  judg- 
ment shall  seem  best ;  that  it  controls  and  regulates  their  action  while 
they  exist,  subjects  them  to  such  changes  as  public  policy  may  dictate, 
and  abolishes  them  at  discretion  ;  in  short  that  the  corporate  entities 
are  mere  agencies  which  the  state  employs  for  the  convenience  of 
government,  clothing  them  for  the  time  being  with  a  portion  of  its 
sovereignt}',  but  recalling  the  whole  or  any  part  thereof  whenever  the 
necessity  or  usefulness  of  the  delegation  is  no  longer  apparent.  This 
I  understand  to  be  the  accepted  theory  of  state  constitutional  law  as 
regards  the  municipal  governments.  We  seldom  have  occasion  to 
inquire  whether  this  amplitude  of  legislative  authorit}'  is  or  is  not  too 
strongly  expressed,  for  the  reason  that  its  exercise  is  generally  con- 
fined within  such  bounds  as  custom  has  pointed  out,  so  that  no  ques- 
tion is  made  concerning  it.  But  such  maxims  of  government  are  very 
seldom  true  in  any  thing  more  than  a  general  sense ;  they  never  are 
and  never  can  be  literally  accepted  in  practice. 

Our  constitution  assumes  the  existence  of  counties  and  townships, 
and  evidently  contemplates  that  the  state  shall  continue  to  be  sub- 
divided as  it  has  hitherto  been  ;  but  it  nowhere  expressly  provides 
that  every  portion  of  tlie  state  shall  have  county  or  township  organi- 
(  \  zations.     It  names  certain  officers  which  are  to  be  chosen  for  these 
I  /.subdivisions,  and  confers  upon  the  people  the  right  to  choose  thern  ; 
W  but  it  does  not  in  general  define  their  duties,  nor  in  terms  preclude 
/  the  legislature  from  establishing  new  offices,  and  giving  to  the  incum- 
1   bents  the  general  management  of  municipal  affairs.     If,  therefore,  no 
restraints  are  imposed  upon  legislative  discretion  be3'ond  those  specifi- 
cally stated,  the  township  and  count}'  government  of  any  portion  of 
the  state  might  be  abolished,  and  the  people  be  subjected  to  the  rule 
of  commissions  appointed  at  the  capital.     The  people  of  such  portion 
might  thus  he  kept  in   a  state  of  pupilage    and  dependence  to  any 
extent,  and  for  any  period  of  time  the  state  might  choose. 

The  doctrine  that  within  any  general  grant  of  legislative  power  by 
the  constitution  there  can  be  found  authority  thus  to  take  from  the 
people  th(!  management  of  tlieir  local  concerns,  and  the  choice,  directly 
or  indirectly,  of  their  local  officers,  if  practically  asserted,  would  be 


LE    ROY   V.   HURLBUT. 


29 


\A.r—' 


,ViLJ2-ev.iv*~^ 


somewhat  startling  to  our  people,  aud  would  be  likely  to  lead  here- 
after to  a  more  careful  scrutiny  of  the  charters  of  government  framed 
by  them,  lest  sometime,  by  an  inadvertent  use  of  words,  they  might 
be  found  to  have  conferred  upon  some  agency  of  their  own,  the  legal 
authority  to  take  away  their  liberties  altogether.     If  we  look  into  the'Y^^|j^jjjj^_^,^_^^ 
several  state  constitutions  to  see  what  verbal  restrictions  have  hereto-^  ^,"t~-ci  Q,^ 
fore  been  placed  upon  legislative  authority  in  this  regard,  we  shall  find    ^ q     _ 
them  very  few  and  simple.     We  have  taken  great  pains  to  surround!*        "^   "^ 
the  life,  liberty,  and  property  of  the  individual  with  guaranties,  but  we 
have  not,  as  a  general  thing,  guarded  local  government  with  similar 
protections.     We  must  assume  either  an  intention  that  the  legislative 
control  should  be  constant  and  absolute,  or,  on  the  other  hand,  thati 
there  are  certain  fundamental  ^^princi pies  in  our  general  frame-work  of  j 
government,  WfltCtt  are  within  the  contemplation  oF^e"  people  when 
tntij('~5g?e""e  Upan  the  written  charter,  subject  to  wmcH.tlie.  .aeiegations 
SrautlTority  to  tlie  several  departments  of  government  have  been  made; 
1'hat  this  last  is  tfie~"case,  appears  to  me  too  plain  for  serious  contfo- 
versy.     The  implied  restrictions  upon  the  power  of  the  legislature,  asj 
regards  local  government,  though  their  limits  may  not  be  so  plainly' 
defined  as  express  provisions  might  have  made  them,  are  nevertheless 
equally  imperative  in  character,  and  whenever  we  find  ourselves  clearly  ,j . 

within   them,  we  have  no  alternative  but  to  bow  to  their  authority.   :        V  '^ 
The  constitution  has  been  framed  with  these  restrictions  in  view,  and  j 
we  should  fall  into  the  grossest  absurdities  if  we  undertook  to  con- 
strue that  instrument  on  a  critical  examination  of  the  terms  employed, 
while  shutting  our  e3-es  to  all  other  considerations. 

The  circumstances  from  which  these  implications  arise  are :  Fii^^  \  ^ 
that  the  constitution  has  been  adopted  in  view  of  a  system  of  local 
government,  well  understood  and  tolerablj-  uniform  in  character,  exist- 
ing from  the  veiy  earliest  settlement  of  the  country,  never  for  a  mo- 
ment suspended  or  displaced,  and  the  continued  existence  of  which  is 
assumed  ;  and,  second,  that  the  liberties  of  thp  ppoplp  hnvp  generally 
been  supposed  to  spring  from,  and  bp  dpppndpnt.  npnn,  that  system. 

DeTocqueville  speaks  of  our  system  of  local  government  as  the 
American  syste^n^  and  contrasts  it  forcibly  with  the  French  idea  of 
centralization,  under  the  influence  of  which  constitutional  freedom  has 
hitherto  proved  impossible.  —  Democracy  in  America,  chapter  5. 
Lieber  makes  the  same  comparison,  and  shows  that  a  centralized 
government,  though  by  representatives  freely  chosen,  must  be  despotic, 
as  any  other  form  of  centralization  necessarily  is.  "  Self-government," 
he  says,  "  means  everything  for  the  people  and  by  the  people,  con- 
sidered as  the  totality  of  organic  institutions,  constantly  evolving  in 
their  character  as  all  organic  life  is ;  but  not  a  dictatorial  multitude. 
Dictating  is  the  rule  of  the  army,  not  of  liberty  ;  it  is  the  destruction 
of  individuality." — Civil  Liberty  and  Self- Government,  chap.  21. 
The  writer  first  named,  speaking  of  the  New  England  township  gov- 
ernment, whose  system  we  have  followed  in  the  main,  says :   ''  In  this 


K' 


30  LE   ROY   V.    HURLBUT. 

part  of  the  union  the  impulsion  of  political  activity  was  given  in  the 
townships ;  and  it  may  almost  be  said  that  each  of  them  originally 
formed  an  independent  nation.     When  the  kings  of  England  asserted 
theft"  supremacy,  the}'  were  contented  to  assume  the  central  power  of 
le  state.     The  townships  of  New  England   remained  as   they  were 
'^before ;  and,  although  they  are  now  subject  to  the  state,  they  were 
t^     at  first  scarcely  dependent  upon  it.     It  is  important  to  remember  that 
^JT   (■"     they  have  not  been  invested  with  privileges,  but  that  they  seem,  on  the 
contrary,  to  have  surrendered  a  portion  of  their  independence  to  the 
state.     The  townships  are  only  subordinate  to  the  states  in  those  in- 
terests which  I  shall  term  social,  as  they  are  common  to  all  the  citizens. 
They  are  independent  in  all  that  concerns  themselves  ;  and  among  the 
inhabitants  of  New  England,  I  believe  that  not  a  man  is  to  be  found 
who  would  acknowledge  that  the  state  has  any  right  to  interfere  in  their 
local  interests."  —  Democracy  in  America,  ubi  supra.     Now,  if  this 
author  is  here  speaking  of  the  theory  of  our  institutions,  he  is  in  error. 
\  It  is  not  the  accepted  theory  that  the  states  have  received  delegations 
\  of  power  from  independent  towns  ;  but  the  theory  is,  on  the  other  hand, 
I  that  the  state  governments  precede  the  local,  create  the  latter  at  discre- 
jtion,  and  endow  them  with  corporate  life.     But,  historically,  it  is  as 
•difficult  to  prove  this  theory  as  it  would  be  to  demonstrate  that  the 
origin  of  government  is  in  compact,  or  that  title  to  property  comes 
from  occupancy.     The  historical  fact  is,  that  local  governments  uni- 
versally, in  this  country,  were  either  simultaneous  with,  or  preceded,  the 
more  central  authority^     In  Massachusetts,  originally  a  democracy,  the 
two  may  be  said  to  have  been  at  first  identical ;  but  when  the  colony 
became  a  representative  government,  and  new  bands  pushed  out  into 
the   wilderness,   they   went  bearing   with   them   grants   of   land   and 
authority  for  the  conduct  of  their  local  aflfairs.  — Hutchinson^ s  Massa- 
chusetts Bay,  ch.  1  ;   Washburn's  Jud.  Hist,  of  Mass.  ch.  1 ;  Body  of 
Liberties,  §§  62,  66,  72  ;  Elliot's  New  England,  Vol.  A,  pp.  425,  427. 
But  in   Connecticut  the   several  settlements  originated  their  own 
governments,   and   though   these  were   doubtless   very  imperfect  and 
informal,   they  were   sufficient   for  the   time   being,   and  the   central 
government  was  later  in  point  of  time.  —  Trumbull's  Hist,  of  Conn., 
Vol.    1,  2^p-   132,    498;  Palfrey's   New   England,    Vol.    \,  p.   454. 
What  the  colony  did  was  only  to  confer  charters,  under  which  the 
town    authority   would   be   administered    within    agreed    limits,    and 
possibly,  with  more   regularity  than  before.     In  Ehode  Island,  it  is 
also  true,  that  township  organization  was  first  in  order  of  time.  — 
Arnold's   Hist.,  of  R.    I.,  ch.  7.     This  author  justly  remarks,  that 
when  the  charter  of  Rhode  Island  was  suspended  to  bring  her  under 
the  dominion  of  Andros,  "  the  American  system  of  town  governments, 
which  necessity  had  compelled  Rhode   Island  to  initiate  fifty  years 
before,  became  the  means  of  preserving  the  liberty  of  the  individual 
citizen  when  that  of  the  state,  or  colony,  was   crushed." —  Vol.  1, 
p.  487.     So  in  Vermont,  the  people  not  only,  for  a  time,  conducted 


LE    ROY    V.   HUELBUT.  31 

all  their  public  affairs  in  towns  and  plantations,  through  committees, 
officers  and  leaders,  nominally  appointed  and  submitted  to  by  general 
consent  and  approbation,  but  they  carried  on  their  controversy  with 
New  York  for  some  years,  without  any  other  organization.  —  Wil- 
liams' Hist,  of  Vermont,  Vol.  2,  p.  163.  In  New  Jersey,  as  in 
Massachusetts,  towns  were  chartered  in  connection  with  grants  of 
land,  and  in  some  instances,  those  which  were  made  by  Nichols, 
adverse  to  the  proprietary,  were  suffered  to  remain  after  his  authority 
was  superseded.  —  See  instances  in  Mulford's  Hist,  of  N.  J.  pp. 
143-4.  The  charter  to  Lord  Baltimore  plainly  recognized  local  gov- 
ernment in  the  provision  requiring  the  laws  and  ordinances  estab- 
lished to  conform  to  the  laws,  statutes  or  rights  of  England.  — 
Bozman's  Hist,  of  Maryland,  p.  290.  And  county  authorities  seem 
to  have  existed  from  the  very  first,  though  their  statutory  organiza- 
tion, if  any  they  had,  cannot  be  traced.  —  Bozman,  pp.  299-303.  But 
it  cannot  be  necessary  to  particularize  further.  The  general  fact  was, 
that  whether  the  colonial  or  local  authorit}^  should  originate  first, 
depended  entirely  upon  circumstances  which  might  make  the  one  or 
the  other  the  more  immediate  need.  But  when  both  were  once  estab- 
lished they  ran  parallel  to  each  other,  as  thej'  were  meant  to  do,  for 
all  time;  and  what  Mr.  Arnold  says  of  Rhode  Island,  may  be  said 
generally  of  the  eastern  and  middle  states,  that  the  attempt  of  the 
last  two  Stuarts  to  overthrow  their  liberties,  was  defeated  by  means 
of  the  local  organizations.  The  scheme  tried  first  in  England,  to 
take  away  the  corporate  charters  in  order  to  make  the  corporators  more 
dependent  on  the  crown,  and  to  restrain  them  from  political  action  in 
opposition  to  the  court  part}',  found,  in  America,  the  colonial  charters 
alone  within  the  reach  of  arbitrary  power ;  and  though  these  were 
taken  away  or  suspended,  it  was  only  with  such  protest  and  resistance 
as  saved  to  the  people  the  town  governments.  In  Massachusetts,  it 
was  even  insisted  by  the  people's  deputies  that,  to  surrender  local 
government  was  contrary  to  the  sixth  commandment,  for,  said  they, 
"men  may  not  destroy  their  political,  any  more  than  their  natural 
lives."  So,  it  is  recorded  they  clung  to  "the  civil  liberties  of  New 
England"  as  "part  of  the  inheritance  of  their  fathers."  —  Palfrey's 
New  England,  Vol.  3.  pp.  381-883  ;  Bancroft's  U.  S.,  Vol.  2,  pp. 
125-127;  Mass.  Hist.  Col.,  XXI,  74-81.  The  whole  contest  with 
Andros,  as  well  as  in  New  England,  as  in  New  York  and  New  Jersey, 
was  a  struggle  of  the  people  in  defense  of  the  right  of  local  govern- 
ment. " Eve r}- where,"  says  Dunlap,  "the  people  struggled  for  their 
rights  and  deserved  to  be  free.''^  —  Hist,  of  N.  Y.,  Vol.  1,  p.  133  ;  and 
see  TrumbulVs  Hist,  of  Conn.,  Vol.  1,  ch.  15. 

I  have  confined  this  examination  to  the  states  which  have  influenced 
our  own  polity  most ;  but  the  same  principle  was  recognized  and  acted 
on  elsewhere.  The  local  governments,  however,  were  less  complete 
in  the  states  further  south,  and  this,  with  some  of  their  leading  states- 
men, was  a  source  of  regret.     Mr.  Jefl^erson,  writing  to  Governor  Tyler 


32 


LE    ROY   V.    HURLBUT. 


in  1810,  speaks  of  the  two  great  measures  which  lie  has  at  heart,  one 
of  which  is  the  division  of  counties  into  hundreds.  "  These  little 
republics,"  he  saj's,  "would  be  the  main  strength  of  the  great  one. 
"We  owe  to  them  the  vigor  given  to  our  revolution,  in  its  commence- 
ment, in  the  eastern  states.  .  .  .  Could  I  once  see  this,  I  should 
consider  it  as  the  dawn  of  the  salvation  of  the  republic."  —  Jefferson' s 
Works^  Vol.  5,  2^-  525.  Mr.  Jefferson  understood  thoroughl}'  the 
truth,  so  quaintly  expressed  bj'  Bacon,  when  he  said  of  a  burden 
imposed  as  compared  to  one  freely  assumed,  that  "it  ma^-  be  all  one 
to  the  purse,  but  it  worketh  diversely  upon  the  courage." 

Such  are  the  historical  facts  regarding  local  government  in  America. 
Our  traditions,  practice  and  expectations  have  all  been  in  one  direc- 
tion. And  when  we  go  beyond  the  general  view  to  inquire  into  the 
details  of  authority,  we  find  that  it  has  included  the  power  to  choose 
in  some  form  the  persons  who  are  to  administer  the  local  regulations. 
Instances  to  the  contrar}',  except  where  the  j^ower  to  be  administered 
was  properly  a  state  power,  have  been  purel}'  exceptional.  The  most 
prominent  of  these  was  the  case  of  the  mayor  of  New  York,  who  con- 
tinued, for  a  long  time  after  the  revolution,  the  appointee  of  the 
governor.  But  this  mode  of  choice  originated  when  the  city  was  the 
seat  of  colonial  government,  and  while  it  constituted  a  large  part  of 
the  colony,  and  the  office  was  afterwards  of  such  dignity  and  impor- 
tance, and  was  vested  with  so  many  general  powers,  that  one  of  the 
first  statesmen  of  the  nation  did  not  hesitate  to  resign  a  seat  in  the 
senate  of  the  United  States  to  accept  it.  —  HammomVs  Pol.  Hist,  of 
J^.Y.,  Vol.  \,  p.  197.  Moreover,  the  first  constitution  of  New  York 
■was,  in  important  particulars,  exceptional.  That  state  had  at  the 
time  a  powerful  aristocratic  element,  by  which  its  first  institutions 
were  in  a  great  measure  shaped ;  and  a  distrust  of  popular  authorit}' 
was  manifest.  It  is  scarcely  needful  to  say  that  features  of  that 
character  disappeared  when  the  constitution  was  revised. 

'  ¥j^v  those  classes  of  officers  whose  duties  are  general,  —  such  as  the 
judges,  the  officers  of  militia,  the  superintendents  of  police,  of  quar- 
antine, d+id  of  ports,  hy  whatever  name  called, — provision  has,  to  a 
greater  or  less  extent,  been  made  by  state  appointment.  But  these 
are  more  properlj'  state  than  local  officers ;  the}-  perform  duties  for  the 
state  in  localities,  as  collectors  of  internal  revenue  do  for  the  general 
government ;  and  a  local  authority  for  their  appointment  does  not 
make  them  local  officers  when  the  nature  of  their  duties  is  essentiall}' 
general.  In  the  case  before  us,  the  officers  in  question  involve  the^ 
custod\%  care,  management,  and  control  of  the  pavements,  sewersT 
water-works  and  public  buildings  of  the  cit}'.  and  the  duties  are  purely, 
local.  The  state  at  large  may  have  an  indirect  interest  in  an  intelli- 
gent,  honest,  upright  and  prompt  discharge  of  them  ;  but  this  is  on 
commercial  and  neighborhood  grounds  rather  than  poHtical,  and  is  not 
much  greater  or  more  direct  than  if  the  state  line  excluded  the  city. 

1^ Conceding  to  the  state  the  authority  to  shape  the  municipal  organiza» 


LE   ROY   V.   HUKLBUT.  33 


tioDS  at  its  will,  it  would  not  follow  that  a  similar  power  of  control  j^-^^*'*-'^ 


might  be  exercised  by  the  state  as  regards  the  property  which  the  ^  ^^ 
corporation  has  acquired,  or  the  rights  in  the  nature  of  property  which  nt^^"'^^-'^^-' 
have  been  conferred  upon  it.  There  are  cases  which  assert  such^  v>^x^/v.  C 
power,  but  they  are  opposed  to  what  seem  to  me  the  best  authorities, 
as  well  as  the  soundest  reason.  The  municipality,  as  an  agent  of 
government,  is  one  thing ;  the  corporation,  as  an  owner  of  property 
is  in  some  particulars  to  be  regarded  in  a  very  different  light.  The 
supreme  court  of  the  United  States  held  at  an  early  day  that  grants  of 
property  to  public  corporations  could  not  be  resumed  by  the  sovereignty. 
—  Terrett  v.  Taylor^  9  Cranch,  43  ;  Toicn  of  Pavdet  v.  Clark,  ihid.^ 
292  ;  and  see  Dartmouth  College  v.  Woodward,  4  WJieat.,  694-698. 
When  the  state  deals  with  a  municipal  corporation  on  the  footing  of 
contract,  it  is  said  by  Trumbull,  J.,  in  Richland  v.  Lawrence,  12 
111.,  8,  the  municipalit}-  is  to  be  regarded  as  a  private  company.  In 
Detroit  v.  Corey,  9  Mich.,  195,  Manning,  J.,  bases  his  opinion  that 
the  cit}'  was  liable  for  an  injury  to  an  individual,  occasioned  by  falling 
into  an  excavation  for  a  sewer,  carelessly  left  open,  upon  the  fact 
that  the  sewers  were  the  private  property  of  the  city,  in  which  the 
outside  public  or  people  of  the  state  at  large  had  no  concern.  In 
Warren  v.  Lyons^  22  loioa^  351,  it  was  held  incompetent  for  the 
legislature  to  devote  to  other  public  uses  land  which  had  been  dedi- 
cated for  a  public  square.  In  State  v.  Hahen,  22  Wis.,  660,  an  act 
appropriating  moneys  collected  for  a  primar}'  school  to  the  erection 
of  a  state  normal  school  building  in  the  same  city  was  held  void. 
Other  cases  might  be  cited,  but  it  seems  not  to  be  needful.  They  rest 
upon  the  well  understood  fact  that  tIi£ge_corporations  are  of  a  two-fold  \  ^^^^"^""Vrt^ 
character^  the  one  otllPilic  as  regards  the  state  at  large,  in  so  far  as      *  ^ 

they  are~Ttsagen^_in  government ;  the  other  private,  in  so  far  asv/V'^^'^^^^^^^^- 
tliev~are  to  provide  the  local  necessities  ^JM^^^Snvemences  for  their'  f^-»Jt*A*lo 
own  citizens :  _and  that  as  to  the  acquisitions  the}"  may  make  in  the 
latter  capacity  as  mere  corporations,  n  is  ffSttirer^Jn^L,  nor  is  it  com^<^<^  -  , 
^etent,  fur  the  legislature  to  taicpt  t.hpni^away.  or  to  d^pHve  the  locaTL-^y~y'^' 
cpuiinunity  of  the  benefit  thereof.  There  may  come  a  time  when  fron/  ^A.xr»  o_e< 
necessity  the  state  must  interpose.  The  state  may  change  municipal  w^ys_  ^'-•— r 
boundaries  ;  and  then  a  division  of  the  corporate  property  ma}'  be 
needful.  The  state  may  take  away  the  corporate  powers,  and  then 
the  property  must  come  to  the  st£  te  as  trustee  for  the  parties  con- 
cerned. In  either  of  these  cases,  undoubtedly,  state  action  becomes 
essential ;  and  the  property  may  be  disposed  of  according  to  the 
legislative  judgment  and  sense  of  justice ;  but  even  then  the  appro- 
priation must  have  regard,  so  far  as  the  circumstances  of  the  case  will 
admit,  to  the  purposes  for  which  the  property  was  acquired,  and  the 
interest  of  those  who  were  corporators  when  the  necessity  for  state 
intervention  arose. 

In  view  of  these  historical  facts,  and  of  these  general  principles, 
the  question  rr i;urs  whether  our  state  constitution  can  be  so  construed 

3 


34  LE    ROY   V.    HURLBUT. 

as  to  confer  upon  the  legislature  the  power  to  appoint  for  the  munici- 
palities, the  officers  who  are  to  manage  the  property,  interests,  and 
rights  in  which  their  own  people  alone  are  concerned.  If  it  can  be,  it 
involves  these  consequences :  As  there  is  no  provision  requiring  the 
legislative  interference  to  be  upon  any  general  system,  it  can  and  may 
be  partial  and  purely  arbitrary.  As  there  is  nothing  requiring  the 
persons  appointed  to  be  citizens  of  the  locality,  they  can  and  ma}'  be 
sent  in  from  abroad,  and  it  is  not  a  remote  possibility  that  self-govern- 
ment of  towns  may  make  way  for  a  government  by  such  influences  as 
can  force  themselves  upon  the  legislative  notice  at  Lansing.  As  the 
municipal  corporation  will  have  no  control,  except  such  as  the  state 
ma}'  voluntarily  give  it,  as  regards  the  taxes  to  be  levied,  the 
buildings  to  be  constructed,  the  pavements  to  be  laid,  and  the 
conveniences  to  be  supplied,  it  is  inevitable  that  parties,  from  mere 
personal  considerations,  shall  seek  the  offices,  and  endeavor  to  secure 
from  the  appointing  body,  whose  members  in  general  are  not  to  feel 
the  burden,  a  compensation  such  as  would  not  be  awarded  by  the 
people,  who  must  bear  it,  though  the  chief  tie  binding  them  to  the 
interests  of  the  people  governed  might  be  the  salaries  paid  on  the  one 
side  and  drawn  on  the  other.  As  the  legislature  could  not  be  com- 
pelled to  regard  the  local  political  sentiment  in  their  choice,  and  would, 
in  fact,  be  most  likely  to  interfere  when  that  sentiment  was  adverse 
to  their  own,  the  government  of  cities  might  be  taken  to  itself  by  the 
party  for  the  time  being  in  power,  and  municipal  governments  might 
easily  and  naturally  become  the  spoils  of  party,  as  state  and  national 
offices  unfortunately  are  now.  All  these  things  are  not  only  possible, 
but  entirely  within  the  range  of  probability,  if  the  positions  assumed 
on  behalf  of  the  state  are  tenable.  It  may  be  said  that  these  would 
be  mere  abuses  of  power,  such  as  may  creep  in  under  any  system  of 
constitutional  freedom ;  but  what  is  constitutional  freedom  ?  Has  the 
administration  of  equal  laws  by  magistrates  freely  chosen  no  necessary 
place  in  it?  Constitutional  freedom  certainly  does  not  consist  in  ex- 
emption from  governmental  interference  in  the  citizen's  private  affairs ; 
in  his  being  unmolested  in  his  family,  suffered  to  buy,  sell  and  enjoy 
property,  and  generally  to  seek  happiness  in  his  own  way.  All  this 
might  be  permitted  by  the  most  arbitrary  ruler,  even  though  he  allowed 
his  subjects  no  degree  of  political  liberty.  The  government  of  an 
oligarchy  may  be  as  just,  as  regardful  of  private  rights,  and  as  little 
burdensome  as  any  other ;  but  if  it  were  sought  to  establish  such  a 
government  over  our  cities  by  law,  it  would  hardly  do  to  call  upon  a 
protesting  people  to  show  where  in  the  constitution  the  power  to 
establish  it  was  prohibited ;  it  would  be  necessary,  on  the  other  hand, 
to  point  out  to  them  where  and  by  what  unguarded  words  the  power 
had  been  conferred.  Some  things  are  too  plain  to  be  written.  If  this 
charter  of  state  government  which  we  call  a  constitution,  were  all 
there  was  of  constitutional  command ;  if  the  usages,  the  customs,  the 
maxims,  that  have  sprung  from  the  habits  of  life,  modes  of  thought, 


LE   ROY  V.   HURLBUT.  35 

methods  of  trying  facts  by  the  neighborhood,  and  mutual  responsibility 
in  neighborhood  interests,  the  precepts  which  have  come  from  the 
revolutions  which  overturned  tjrannies,  the  sentiments  of  manly  in- 
dependence and  self-control  which  impelled  our  ancestors  to  summon 
the  local  community  to  redress  local  evils,  instead  of  relying  upon 
king  or  legislature  at  a  distance  to  do  so,  — if  a  recognition  of  all  these 
were  to  be  stricken  from  the  body  of  our  constitutional  law,  a  lifeless 
skeleton  might  remain,  but  the  living  spirit,  that  which  gives  it  force 
and  attraction,  which  makes  it  valuable  and  draws  to  it  the  affections 
of  the  people,  that  which  distinguishes  it  from  the  numberless  con- 
stitutions, so  called,  which  in  Europe  have  been  set  up  and  thrown 
down  within  the  last  hundred  3'ears,  many  of  which,  in  their  expres- 
sions, have  seemed  equall}'  fair  and  to  possess  equal  promise  with  ours, 
and  have  only  been  wanting  in  the  support  and  vitality  which  these 
alone  can  give,  —  this  living  and  breathing  spirit,  which  supplies  the 
interpretation  of  the  words  of  the  written  charter,  would  be  utterly 
lost  and  gone. 

Mr.  Justice  Story  has  well  shown  that  constitutional  freedom  means 
something  more  than  liberty  permitted  ;  it  consists  in  the  civil  and 
political  rights  which  are  absolutel}'  guarantied,  assured  and  guarded  ; 
in  one's  liberties  as  a  man  and  a  citizen,  —  his  right  to  vote,  his  right 
to  hold  office,  his  right  to  worship  God  according  to  the  dictates  of  his 
own  conscience,  his  equality  with  all  others  who  are  his  fellow-citizens  ; 
all  these  guarded  and  protected,  and  not  held  at  the  mercy  and  dis- 
cretion of  any  one  man  or  of  an}-  popular  majority.  —  Story,  Miscel' 
laneous  Writings,  620.  If  these  are  not  now  the  absolute  right  of  the 
people  of  Michigan,  they  may  be  allowed  more  liberty  of  action  and 
more  privileges,  but  they  are  little  nearer  to  constitutional  freedom 
than  Europe  was  when  an  imperial  city  sent  out  consuls  to  govern  it. 
The  men  who  framed  our  institutions  have  not  so  understood  the  facts. 
With  them  it  has  been  an  axiom,  that  our  system  was  one  of  checks 
and  balances  ;  that  each  department  of  the  government  was  a  check 
upon  the  others,  and  each  grade  of  government  upon  the  rest ;  and 
they  have  never  questioned  or  doubted  that  the  corporators  in  each 
municipalit}'  were  exercising  their  franchises  under  the  protection  of 
certain  fundamental  principles  which  no  power  in  the  state  could  over- 
ride or  disx-egard.  The  state  may  mould  local  institutions  according 
to  its  views  of  policy  or  expediency  ;  but  local  government  is  mattei/ 
of  nh~n]ntp  ria"ht :  and  the  state  cannot  take  it  away.  It  would  be) 
UTe  boldfst  uiuckery  to  speak  of  a  city  as  possessing  municipal  liberty 
where  the  state  not  onl}-  shaped  its  government,  but  at  discretion  sent 
in  its  own  agents  to  administer  it ;  or  to  call  that  system  one  of  con- 
stitutional freedom  under  which  it  should  be  equally  admissible  to 
allow  the  people  full  control  in  their  local  affairs,  or  no  control  at  all. 

What  I  say  here  is  with  the  utmost  respect  and  deference  to  the 
legislative  department;  even  though  the  task  I  am  called  upon  to 
perform  is  to  give  reasons  why  a  blow  aimed  at  the  foundation  of  our 


36  LE    ROY   V.    HURLBUT. 

structure  of  liberty  should  be  warded  off.  Nevertheless,  when  the 
state  reaches  out  and  draws  to  itself  and  appropriates  the  powers  which 
from  time  immemorial  have  been  locally  possessed  and  exercised,  and 
introduces  into  its  legislation  the  centralizing  ideas  of  continental 
Europe,  under  which  despotism,  whether  of  monarch  or  commune, 
alone  has  flourished,  we  seem  forced  back  upon  and  compelled  to  take 
up  and  defend  the  plainest  and  most  primary  axioms  of  free  govern- 
ment, as  if  even  in  Anglican  liberty,  which  has  been  gained  step  by 
step,  through  extorted  charters  and  bills  of  rights,  the  punishment  of 
kings  and  tlie  overthrow  of  dynasties,  nothing  was  settled  and  nothing 
established. 

But  I  think  that,  so  far  as  is  important  to  a  decision  of  the  case 
before  us,  there  is  an  express  recognition  of  the  right  of  local  author- 
ity by  the  constitution.  That  instrument  provides  {Art.  JTV.,  §  14)  that 
"judicial  othcers  of  cities  and  villages  shall  be  elected;  and  all  other 
officers  shall  be  elected  or  appointed,  at  such  time  and  in  such  manner 
as  the  legislature  may  direct."  It  is  conceded  that  all  elections  must, 
under  this  section,  be  by  the  electors  of  the  municipalit}'.  But  it  is 
to  be  observed  that  there  is  no  express  declaration  to  that  effect  to 
be  found  in  the  constitution  ;  and  it  ma}'  well  be  asked  what  there  is 
to  localize  the  elections  an}'  more  than  the  appointments.     The  answer 

must   be,  that    in    examining   the  whole   instrinnpnt.   a    gPTiprnl    infpnt.   is 

found  pervading  it,  which  clearly  indicates  that  these  elections  are  to 
be  by  the  local  voters,  and  not  b}'  the  legislature,  or  by  the  people  of 
a  larger  territory  than  that  immediately  concerned.  I  think  also  that 
^^en  the  constitution  is  examined  in  the  light  of  previous  and  con- 
temporaneous history,  the  like  general  intent  requires,  in  language* 
equally  clear  and  imperative,  that  the  choice  of  the  other  corporate 
Officers,  shall  be  made  m  some  form,  either  directly  or  indirectl}',  by  the 
qorporators  themselves.  ~ 

The  previous  history  I  have  sufflcientl}'  referred  to  ;  and  it  is  a  part 
of  the  public  historj-  of  the  times  that  the  convention  which  framed  the 
constitution  of  1850  had  in  view  as  prominent  objects,  to  confide  more 
power  to  the  people,  to  make  officers  generall}'  elective,  and  to  take 
patronage  from  the  executive.  We  see  this  in  the  provisions  for  the 
elections  of  judges,  state  officers,  regents  of  the  university  and  pro- 
secuting attorneys ;  in  the  requirement  that  banking  laws  shall  be 
referred  to  the  people  for  adoption  ;  in  the  exclusive  control  given  to 
the  supervisors  in  the  settlement  of  claims  against  counties,  and  in 
the  express  provision  that  "  the  legislature  ma}'  confer  upon  organized 
townships,  incorporated  cities  and  villages,  and  upon  the  boards  of 
supervisors  of  the  several  counties,  such  powers  of  a  local,  legislative 
and  administrative  character  as  they  may  deem  proper."  All  these 
were  in  the  direction  of  popularizing  authority.  Even  the  officers  who 
were  to  perform  the  duties  of  master  in  chancery  were  required  to  be 
elected.  When,  therefore,  we  seek  to  gather  the  meaning  of  the  con- 
stitution from  "  the  four  corners  of  the  instrument,"  it  is  impossibli 


CITY   OF   OSHKOSH   V.   HABEN. 


37 


to  conclude  that  the  appointments  here  prescribed,  in  immediate  con- 
nection with  elections  by  the  local  voters,  and  b}"  a  convention  intent 
on  localizing  and  popularizing  authority,  were  meant  to  be  made  at 
the  discretion  of  the  central  authority,  in  accordance  with  an  usage  not 
prevalent  since  the  days  of  the  Stuarts,  and  which  even  then  was 
regarded,  both  in  England  and  America,  as  antagonistic  to  liberty  and 
subversive  of  corporate  rights. 

So  far,  then,  as  the  act  in  question  undertakes  to  fill  the  new  oflSces 
with  permanent  appointees,  it  cannot  be  sustained,  either  on  general 
principles,  or  on  the  words  of  the  constitution. 

[The  learned  Judge  then  discussed  the  question  whether  the  legis- 
lature might  make  provisional  appointments  to  put  the  new  S3-stem 
in  operation,  and  whether  the  first  members  named  in  the  act  would 
rightfully  hold  office  as  provisional  incumbents  until  appointees  were 
named  by  the  common  council.  He  answered  these  questions  in  the 
affirmative,  and  held  that  the  persons  named  in  the  act  were  entitled 
to  the  office  as  provisional  appointees. 

Campbell,  C.  J.,  Christianct,  J.,  and  Graves,  J.,  also  delivered 
opinions.  The}-  all  concurred  in  the  view  that  the  legislature  could  not 
appoint  members  of  the  board  of  public  works  as  permanent  officers  for 
the  full  term.  On  the  question  whether  the  legislative  appointments 
could  be  sustained  as  a  provisional  measure,  Christianct,  J.,  concurred 
with  CooLEY,  J.,  in  holding  the  aflRrmative.  Campbell,  C.  J.,  and 
Graves,  J.,  held  contra J\ 


STATE    OF  WISCONSIN,   ex  rel.   BOARD    OF    EDUCATION 
OF  THE   CITY   OF   OSHKOSH   v.    HABEN. 

1868.     22  TFisconsiVi,  660.^  eJ_fc:. 


Appeal  from  the  Circuit  Court. 


Alternative  mandamus  to  require  the  city  tfeasurer  of  Oshkosh  to  ^^.SlAa     <\ 
pay  orders  drawn  by  the  board  of  education  in  favor  of  Alger,  a  con-  oT^^'  ov 
tractor  on  the  high  school  building.     By  an  act  passed  in  1866,  the  ^-..a/^* 
board  were  authorized  to  raise,  by  special  tax,  money  for  the  erection  ^t2T^^X^ 
of  a  high  school  building ;  and  were  also  authorized,  if  in  their  judg- 
ment it  was   necessary,  to  appropriate   the  money  so  raised  to   the 
purpose  of  establishing  a  state  normal  school  in  said  city.     The  said 
act  further  empowered  the  board  to  raise,  by  special  tax,  money  for 
the  establishment  of  a  state  normal  school.     Under  a  resolution  of  the 
board,  money  was  raised  by  taxation  for  a  high  school  building,  and 
was  paid  over  to  the  city  treasurer.     The  board  did  not  set  apart  any  VjVsi-Al  t 

of  this  money  for  a  normal  school,  nor  did  they  raise  any  money  by ~   < 

taxation  for  a  normal  school.     In  1867,  an  act  was  passed  providing,  c\1r^-  "^"^ 


Statement  ahriilf^ed.     Arguments  omitted.  —  Ed. 


£^£1 


38  CITY    OF   OSHKOSH   V.    HABEN. 

in  substance,  that  $10,000  of  the  money  raised  b}'  the  said  tax  in 
18GG  shall  be  retained  in  the  city  treasuiy,  and  that  the  purchase 
money  for  the  site  selected  for  a  normal  school  in  said  city  shall  be 
paid  out  of  said  $10,000  when  the  title  of  said  site  shall  be  approved 
by  the  regents  of  the  normal  schools. 

Motion  to  quash  the  writ  of  mandamus.  Motion  denied.  De- 
fendant appealed. 

Jackson  &  Ilalsey,  for  appellant. 

Freeman  <b  Hancock^  for  relators. 

Dixon,  C.  J.  This  case  presents  two  questions,  which  may  be 
stated  thus  :  1.  "Was  the  defendant  justified  in  refusing  pa3'ment  of 
the  orders  set  forth  in  the  alternative  writ?  2.  If  he  was  not,  are  the 
relators  the  proper  parties  to  applj-  to  the  court  for  a  writ  of  rnanda- 
mus  to  compel  him  to  pay  them? 

The  answer  to  the  first  question  depends  on  the  validit}^  of  so  much 
of  section  1,  chap.  348,  Private  and  Local  Laws  of  1867,  as  sets 
apart  and  retains  in  the  treasury  of  the  cit}'  of  Oshkosh,  or  attempts 
so  to  do,  the  sum  of  ten  thousand  dollars  out  of  the  tax  levied  in  the 
year  1866  under  the  authoritj'  conferred  by  chapter  236,  Private  and 
Local  Laws  of  1866,  entitled  "An  act  to  authorize  the  board  of  educa- 
tion of  the  cit}'  of  Oshkosh  to  lev}'  a  tax  to  build  a  school-house," 
which  said  sum  of  ten  thousand  dollars,  so  to  be  set  apart  and  re- 
tained, was  to  be  paid  out  as  the  purchase  money  for  the  site  for  a 
normal  school  in  said  cit}-,  to  be  selected  and  the  title  approved  and 
accepted  by  the  board  of  regents  of  normal  schools.  The  tax  levied 
in  the  year  1866,  of  which  this  sum  of  ten  thousand  dollars  was  a 
portion,  was,  in  the  words  of  the  act  by  which  it  was  authorized, 
levied  "  to  be  used  for  the  purpose  of  erecting  a  suitable  high  school 
building  in  said  city."  It  was  lawfully  so  levied.  It  is  true  that  the 
board  of  education  of  the  city  of  Oshkosh,  under  whose  direction  the 
levy  was  made,  were  authorized  to  raise  a  portion  of  the  sum  or  sums 
specified  in  the  6th  section  of  the  act  "  for  the  purpose  of  aiding  in  the 
establishment  of  a  state  normal  school  in  said  city."  This  authority 
was,  however,  purely  discretionary ;  and  as  the  board  of  education 
saw  fit  not  to  raise  any  money  for  that  purpose,  the  inquiry  is  the 
Ju^  ^iA^Y-**  •  same  as  if  no  such  authority  had  been  conferred.  The,_question_  then 
-JC  I^jwXa-^  is  :  Was  it  competent  for  the  legislature,  without  the  assent  of  the  city 
"^^V*^  "^  or  its  inhabitants,  thus  to  divert  the  funds  raiscdand  in  the  hands  of 
the_treasurer  for  the  purpose  of  erecting  a  suitable  hitrh_school  build- 
_  and   to   declare   that  they  should  he  appropriated,  jiot  for  that 

fiiXj^jt^      |[)urpose,  hut  lor  the  p»l'posc  of  purchastng^e_site  for  a  state  normal 

_ool  in  the  city?     ^e  are  clearly  of _ opinion  that  it_was  U£>t.     It  is 

eirsettlcd  as  to  all  matters  pertaining  to  vested  rights  of  pjopeity^ 
whether  real  or  personal,  and  to  the  oblip^ation  of  contracts,  tliaj^^^ 
municipal  corporations  are  as  much  wittini  the  protection  of  the;  ^^ 
/cderaTTonstitution  as  nnvate  mdividuals  are.  T|]f  Jif  i.s];iriiic  cjumatp 
4ivest  a  municipal  corppiation  of  its  property,  without  t ' '* ;j ••  )i i st  iit  of*^ 


»^-er«sJi_ 


n 


CITY   OF   OSHKOSH   V.    HABEN.  39 

(ts   inbabitflnts.  nor  imp.air  thft   obligation   of  a  contract  entered  intu^fe^V^  ^ 
_^ith  or  in  behalf  of  such  corporation,     See  Milwaukee  v.  Milwaukee,   ^/«^>tr^.  vjo 
12  Wis.,  93,  and  authorities  cited.     What  was  the  act  in  question  but  .'^•■^^-*'*-'^^ 
a  most  obvious  attempt,  at  the  mere  will  of  the  legislature,  to  deprive  **^^-'~^*'-*~*"^ 
the  cit}'  of  Oshkosh  of  so  much  money  lawfully-  acquired  for  a  proper 
municipal   purpose,    and,    without   the  assent  of   the  inhabitants,   to 
appl}'  it  to  another  purpose,  not  municipal,  but  one  in  which  all  the 
people  of  the  state  have  a  common  interest?     Clearlj-  no  other  effect 
can  be  given  to  it.     A  state  normal  school,  as  its  name  Indicates,  is  a^ 
state  institution  established  for  the  benefit  of  the  people  of  the  entire  \ 
state    and    maintained   h\   funds   provided   by   the   state.     This  will  J 
readily  appear   from    an  exammation   of  the   several   statutes  under  i 

which  those  schools  are  organized,  and  which  prescribe  the  powers 
and  duties  of  the  board  of  regents  of  the  same.  R.  S.  ch.  22  ;  Laws 
of  1859,  ch.  94;  Laws  of  1865,  ch.  537;  Laws  of  1866,  ch.  116. 
The  regents  are  appointed  by  the  governor  by  and  with  the  approval 
of  the  senate,  and  the  title  of  the  lands,  buildings,  furniture,  books, 
apparatus  and  all  other  property  and  effects,  is  vested  in  the  board, 
which  has  the  exclusive  management  and  control  of  the  same.  To 
jay,  therefore,  that  the  legislature  can,  without  the  assent  of  the 
proper  municipal  authorities  or  of  the  inhabitants,  take  the  money  of 
the  city^f  Oshkosh  and  appropriate  it  to  the  establishment  of  a  state 
normal  school,  is  to  say  that  it  can  take  the  mone}"  of  any  municipal 
corporation  and  apply  it  to  any  general  state  purpose.  If  the  act  had 
directed  the  money  in  question  to  be  deposited  in  the  state  treasury 
as  part  of  the  general  fund  belonging  to  the  state,  oi-  had  appropri- 
ated it  toward  the  completion  of  the  state  capital  now  in  process  of 
construction,  the  violent  nature  of  the  proceeding  might  have  been 
more  manifest,  but  it  would  not  have  been  more  unauthorized.  The 
advantages  incidentally  accruing  to  the  citizens  of  Oshkosh  from  the 
establishment  of  a  state  normal  school  at  that  place,  though  sufficient, 
with  the  consent  of  the  legislature,  to  justify  the  citizens  themselves, 
or  the  proper  municipal  officers,  in  levying  a  tax  to  aid  in  the  pur- 
chase of  a  site  or  the  erection  of  buildings,  do  not  change  the  nature 
of  the  question  here  presented.  The  tax  so  levied  must  be  with  the 
assent  of  the  citizens  or  proper  city  officers.  The  legislatui-e  has  no 
power  arbitrarily  to  impose  such  a  tax,  as  that  would  not  only  be  in 
plain  conflict  with  the  rule  of  uniformity  in  taxation  prescribed  by  the 
constitution,  but  contrary  to  the  general  principles  of  law  governing 
such  proceedings.  If,  therefore,  the  legislature  cannot  impose  a  tax 
for  such  a  purpose,  it  follows  that  it  cannot  for  the  same  purpose 
arbitrarily  appropriate  the  money  of  the  city  already  lawfully  raised 
by  taxation  for  another.  As  well  might  the  legislature,  without  the 
assent  of  the  city,  appropriate  the  high  school  building  itself,  after  its 
completion,  for  a  state  normal  school,  as  seize  the  funds  provided  by 
the  city  for  the  purpose  of  erecting  it.  This,  we  think,  would  be 
regarded  by  every  one  as  wholly  unjustified  by  any  sound  principle  of 


40  DARLINGTON    V.   MAYOR   &C.    OF    NEW   YORK. 

legislation  —  a  mere  act  of  lawless  violence.  The  act  in  question, 
though  the  injustice  of  it  may  not  be  quite  so  apparent,  in  realitj" 
stands  on  no  better  foundation. 

2.  Are  the  relators  the  proper  parties  to  apply  for  this  writ?     We 
think  not. 

[On  the  latter  ground  the  order  below  was  reversed.] 

U    ¥  ^^ 

DARLINGTON  v.   MAYOR  &c.   OF  NEW  YORK. 

1865.     31  New  York,  164.1 

Suit,  in  the  Superior  Court,  under  the  statute  of  April  13,  18.55 
(Chapter  428),  which  provides  that,  whenever  any  property  shall  be  de- 
stroyed or  injured  in  consequence  of  any  mob  or  riot,  the  city  or  coun- 
ty in  which  such  property  was  situated  shall  be  liable  to  an  action  by 
the  owner  for  the  damages  so  sustained.  The  statute  further  provides 
that,  whenever  any  final  judgment  shall  be  recovered  against  any  such 
city  or  county',  the  treasurer  of  said  city  or  county  shall,  upon  the 
production  of  a  certified  copy  of  the  judgment  roll,  paj*  the  amount  of 
such  judgment,  and  charge  the  amount  thus  paid  to  said  citj-  or  county. 
On  the  trial,  defendants  admitted  the  destruction  of  plaintiffs  per- 
sonal propert}-,  b}-  a  riotous  assemblage,  on  July  13,  1863. 

Defendants  moved  for  a  nonsuit;  one  ground  of  the  motion  being, 
'  that  the  effect  of  the   statute  was  to  deprive  the   defendants   of  their 

^^'^  H,\     ,      property'  without  due  process  of  law.     The  court  nonsuited  the  plaintiff. 
"  •  ^^^""^^^'^The  General  Term  made  an  order  reversing  the  judgment  of  nonsuit 
>^~  *N:i         and  directing  a  new  trial.     From  this  order,  the  defendants  appealed. 
John  K.  IlacJcett  and  Wm.  FuUerton,  for  defendants. 
Tlw7nas  Darlington,  plaintiff,  in  person. 

^^^^ Cephas  Brainerd  and  James  S.  Stearns,  of  counsel  for  nine  hundred 

^^^^!^^^  ^^and  fifty  plaintiffs  in  like  cases. 

vxw>,frvww.NjLrs>,  Denio,  C.  J.  [After  deciding  another  point.]  The  other  objection 
*^v^.  is  that  by  force  of  the  act,  if  it  shall  be  executed,  what  is  termed  the 
private  propert}'  of  the  city  ma}'  be  taken  for  a  public  use  without  due 
process  of  law,  and  without  a  provision  for  compensation.  It  cannot 
l)c  doubted  but  that  the  general  purposes  of  the  law  are  within  the  scope 
of  legislative  authority.  Tlie  legislature  hgve  plenary  power  in  respect 
^■'**"^*  (to  all  subjects  of  civil  government,  which  they  arc  not  prohibited 
T*  ^f"^  from  exercising  by  the  Constitution  ot  the  United  iStates,  or  by  some 
_^  provision  or  arrangement  of  the  Constitution  of  this  State.     This  act 

^^_;j)^  proposes  to  subject  the  people  of  the  several  local  divisions  of  the  State, 


Si.   .o-<Jfc- 


'Vv-   C>^->j^>r:i^ 


■*^  -jtj3^_ZA^   consisting  of  counties  and  cities,  to  the  payment  of  any  damages  to 
^^^_^      ^~^-  property  in  consequence  of  any  riot  or  mob  within  the  count}'  or  city. 

1  Statement  rewritten.     A rpjninents  omitted  ;  also  the  disseuting  opinion  of  Ingha- 
ICA.M,  .J.,  and  pcn'tions  of  the  opinion  of  Denio,  C.  J.  —  Ku. 


^^:>^oL. 


v\  ^^"^    "^ 


DARLINGTON   V.   MAYOR   &C.    OF   NEW   YORK.  41 

The  polic}'  on  wbicb  the  act  is  framed,  ma}'  be  supposed  to  be,  to  makd\S-C^  v.-o  \ 
good,  at  the  public  expense,  the  losses  of  those  who  may  be  so  unf'or7//v»>^*^-^^ 
tunate,  as  without  their  own  fault  to  be  injured  in  their  property  by ]/  ^ "  V>-c^rv»* 
acts  of  lawless  violence  of  a  particular  kind  which  it  is  the  general  11^*^^^*"/^ 
duty  of  the  government  to  prevent ;  and  further,  and  principall}'  we  1/  ^j^^r\ 
ma}'  suppose,  to  make  it  the  interest  of  every  person  liable  to  contri-  ( ^\^  »»-^_ft>  ^ 
bute  to  the  public  expenses  to  discourage  lawlessness  and  violence,  and 
maintain  the  empire  of  the  laws  established  to  preserve  public  quiet 
and  social  order.  These  ends  are  plainly  within  the  purposes  of  civi^ 
government,  and,  indeed,  it  is  to  attain  them  that  governments  are  in-  ■S^v.<,.Aa  ^  ^^ 
stituted ;  and  the  means  proviilod  1)\-  tliis  act  seem  to  be  reasonably  'v- >»"-«^'ft-^ 
adapted  to  the  purposes  in  view..  If  this  were  less  obvious,  the  practice 
of  the  country  from  which  we  derive  so  many  of  our  legal  institutions 
would  leave  no  doubt  on  the  subject.     Laws  of  this  general  character  ^ajc»vj*-»/s-  ■<\ 

have  existed  in  England  from  the  earliest  ^jeriod.     It  was  one  of  the ^ 

institutions  of  Canute  the  Dane,  which  was  recognized  b}-  the  Saxon        , • 

laws,  that  when  an}'  person  was  killed,  and  the  slayer  had  escaped,  the  yV-^SIfe'v** 
ville  should  pay  forty  marks  for  his  death  ;  and  if  it  could  not  be  raised . 
in  the  ville,  then  the  hundred  should  pay  it.  "This  irregular  pro- 
vision," saj's  an  able  author,  "  it  was  thought  would  engage  every  one 
in  the  prevention  and  prosecution  of  such  secret  offenses."  (1  Reeve's 
History  of  Eng.  Law,  17.)  Coming  down  to  the  reign  of  the  Norman 
kings,  we  find  in  the  statute  of  Winchester  (13th  ed.,  I,  ch.  1,  p.  1)  a 
provision  touching  the  crimes  of  robber}',  murder  and  arson  —  that  if 
the  country,  /.  e.,  the  jury,  would  not  answer  for  the  bodies  of  the 
offenders,  the  people  dwelling  in  the  county  were  to  be  answerable  for 
the  robberies,  and  the  damages  sustained,  so  that  the  whole  hundred 
where  the  robbery  was  committed,  with  the  franchises  thereof,  should 
be  answerable.  It  is  upon  this  statute  that  the  action  against  the  hun- 
dred, for  robberies  committed  therein,  of  which  so  many  notices  are 
met  with  in  the  old  books,  is  grounded.  (Reeve,  vol.  I,  p.  213  ;  Second 
Ins.,  ch.  17,  p.  569.) 

Passing  by  the  statutes  of  subsequent  reigns,  and  particularly  several 
in  that  of  Elizabeth,  in  which  this  remedy  has  been  somewhat  modified 
while  its  principle  is  steadily  adhered  to,  we  come  to  the  7th  and  8th 
Geo.  IV,  ch.  31,  which  was  an  act  for  consolidating  and  amending  the 
laws  of  England,  relative  to  remedies  against  the  hundred.  It  repeals 
several  prior  acts  providing  remedies  against  the  hundred  for  the 
damages  occasioned  by  persons  violently  and  tumultuously  assembled, 
and  enacts  a  series  of  provisions  very  similar  in  effect  with,  and  in 
some  respects  more  extensive  in  tlieir  scope  than  those  of  the  statute 
under  consideration.  As  the  hundreds  were  not  corporations,  tlie 
action  was  to  be  brought  against  the  high  constable  ;  and  on  judgment 
being  rendered,  the  sheriff  was  to  draw  his  warrant  on  the  count}-  trea- 
-jurer  for  the  amount  of  the  recovery.  Ultimately,  the  money  was  to 
oe  collected  by  local  taxation  in  the  hundred  made  liable.  These 
provisions  have  no  direct  bearing  upon  the  present  case,  but  are  re- 


42 


DARLINGTON   V.   MAYOR   &C.    OF   NEW   YORK. 


ferred  to  to  show  that  the  action  in  question  is  based  upon  a  policy 
which  is  coeval  with  the  laws  of  England,  and  one  which  has  been 
constantly  acted  on  in  that  country-,  and  hence  that  it  very  clearly 
falls  within  the  general  powers  of  the  legislature. 

As,  however,  the  objection  of  the  defendants  arises  out  of  a  consti- 
tutional restraint,  substantially  identical  with  one  of  the  provisions  of 
Magna  Charta  (ch.  29),  it  is  at  least  a  curious  coincidence,  that  the 
policy  of  compelling  a  local  community  to  answer  with  their  property 
for  acts  of  violence  committed  by  others,  has  been  considered  by  the 
English  parliament  as  a  supplement  to,  rather  than  a  violation  of,  the 
Great  Charter. 

In  the  statute  called  Articuli  super  cartam,  Anno  28  Edward  I, 
which  confirmed  the  Great  Charter  and  the  Charter  of  the  Forest,  and 
directed  that  the  same  should  be  firmly  observed  "  in  every  part  and 
article,"  it  was  directed  in  terms  that  the  statute  of  Winchester,  which 
gave  a  remedy  against  the  hundred,  for  robberies  committed  in  it, 
should  be  sent  again  into  every  county  to  be  read  and  published  four 
times  a  year,  and  kept  in  "every  point  as  strictly  as  the  two  Great 
Charters,  upon  the  pains  therein  limited."  (Reeve,  vol.  II,  p.  340 ; 
Coke,  2  Inst,  ch.  17,  p.  369.) 

Assuming  it  to  be  sufficiently  apparent  that  the  statute  in  question^ falls 
within  the  general  scope  of  legislative  authority',  the  particular  inquiry 
is,  whether  it  violates  the  constitutional  provisions  relied  on  by  the 
defendant.  It  is  plain  enough  that  the  suits  which  it  authorizes,  will, 
if  successful,  result  in  requiring  contributions  from  the  tax-payers  of 
the  local  communities,  to  make  good  the  losses  of  persons  who  have 
suffered  from  the  acts  of  rioters.     In  that  way,  it  may  be  said  that 


their  pro))erty  may  be  taken.     In  one  sense  it  may  be  conceded  that  it 


taken  for  a  public  use  ;  for  when  the  State  undertakes  to  indemnify 
sufferers  from  riots,  the  executing  of  that  dut^-  is  a  public  concern, 
the  expenditure  is  on  public  account.     It  is  a  public  use  in  the 


same   sense  as  the   expenditure  of  money  for  the  erection  o£  court 

lOuscs  and  jnils,  the  constructiog  of  roads  and  bridges,  and  tlui'sup-^ 

rt  of  tlie  pooL^    It  is  taken   for  an  object  which  the  legishitiire  has 

UriiiiiM'd  to  be  of  public  importance,  and  for  the  interest  of  the  State. 

ivate  pioporty  thus  taken  is  not  seized  by  the  execution  of  the  right 

neiiL  duinailL 

:  were  so  considered,  all  contributions  exacted  from  citizens  for 
defraying  the  expenses  of  the  government  and  of  local  administration, 
would,  in  order  to  be  legal,  require  the  return  of  a  precise  equivalent 
to  the  tax  payers  as  a  compensation,  which  would  be  absurd.  Every 
one  will  at  once  see  that  this  cannot  be  so,  and  that  if  it  were,  govern- 
ment could  not  be  carried  on  at  all.  But  no  general  reasoning  is 
necessary,  for  the  subject  has  been  elaborately  considered  and  deter- 
mined in  this  court. 

There  can  be  no  objection  to  imposing  the  burthens  which  shall 


DARLINGTON   V.   MAYOR   <tC.    OF   NEW   YORK.  43 

arise  in  the  execution  of  the  act,  upon  the  local  division  where  the 
riots  take  place,  and  the  losses  were  occasioned.  This  is  the  case 
with  all  public  exactions,  which  from  their  nature  are  local  in  their 
objects,  and  which  generally  arrange  themselves  under  the  head  of 
town,  cit}'  or  count}-  charges.  If  we  look  at  the  statute  we  are  exam- 
ining, as  resulting  ultimately'  in  occasioning  taxation,  for  the  means  of 
raising  the  money  which  will  be  required  to  carry  out  its  purposes,  the 
foregoing  observations  will  be  all  which  it  seems  to  me  necessary  for 
the  determination  of  tliis  appeal ;  and  I  am  of  opinion  that  it  should  be 
considered  in  that  light. 

But  it  is  contended  that  the  application  of  the  case  to  the  city  of 
New  York,  raises  a  further  and  different  question.  The  fact  that  it  is 
governed  by  a  corporation,  under  a  charter  conferring  certain  munici- 
pal rights,  does  not,  of  course,  raise  an}'  distinction.  The  authority 
of  the  legislature  prevails  within  the  limits  of  chartered  cities  and 
villages,  and  the  public  laws  have  the  same  force  there  as  in  the  other 
parts  of  the  Stated  That  position  does  not  admit  of  an  argument. 
(The  People  v.  Morris,  13  Wend.,  325.) 

The   particular   point  appears  to  be  that  the  form  of  the   remedy  *$)• 
for  raising  the  money  required  to  pay  individual  losses,  provided  by\x>-«Jc'J" 
the  act,  leads  to  consequences  which  would  violate  the  constitutional^ 
provision.     The  part}'  who  has  sustained  damages  by  a  riot,  may  prose- 
cute the  city  corporation  ;  and  the  act  provides  that  if  he  obtain  judg-'\. 
ment,  the  city  treasurer  is  to  pay  the  amount  and  charge  it  to  the  city.- 
It  is  argued  that  it  may  happen  that  there  will  be  no  moneys  in  the  *^  Ji/«JLjKl4 
treasury,  or  the  treasurer  may  be  unable  or  unwilling  to  make  the  pay-     Ov/^  ^QyJ^-«o- 
ment ;  but  the  plaintiff,  having  a  judgment  against  the  corporation, 
may  cause  an  execution  to  be  levied  upon  its  property.     The  property 
of  the  city,  it  is  further  argued,  is  private  property,  which  the  corpora- 
tion holds  by  the  same  title  as  an  individual  or  a  private  corporation, 
and  that  it  is  equally  under  the  protection  of  the  Constitution.     The 
effect  of  the  act,  as  it  is  urged,  therefore,  is  the  same  as  though  the 
property  of  one  designated  private  citizen   should  be  directed  to  be 
seized  and  appropriated  to  pay  a  local  public  charge.     This,  it  is  plain, 
could  not  be  justified  under  the  taxing  power  or  any  other  head  of  legis- 
lative authority.     The  answer  made  to  this  argument,  in  the  printed 
opinion  of  the  Superior  Court,  is,  that  the  method  of  collecting  the 
judgment  by  application  to  the  treasurer,  is  exclusive,  and  that  prop- 
erty cannot  be  taken  on  execution  upon  such  judgments.     This  answer 
is  not  entirely  satisfactory  to  my  mind.     By  permitting  the  party  who 
had  sustained  damages  to  recover  judgment  in  the  ordinary  course  of 
justice,  without  any  provision  qualifying  the  effect  of  such  judgment,  it 
cannot,  I  think,  have  been  intended  to  withhold   from  him  any  of  the 
legal  rights  of  a  judgment  creditor.     The  most  universal  of  these  rights 
Is  that  of  levying  the  amount  of  the  judgment  against  the  property  of 
the  debtor,  by  the  usual  process  of  execution.     If  it  were  intended  to 
exclude  that  remedy,  it  is  difficult  to  see  why  a  judgment  should  be  per- 


44  DARLINGTON  V.    MAYOR  &C.  OF  NEW  YORK. 

mitted  to  be  recovered  at  all.  Without  that  effect  the  judgment  would 
be  illusor}-  in  manj-  cases,  for  it  would  rarely,  if  ever,  happen  that  there 
would  be  funds  in  the  treasury  adequate  and  applicable  to  the  payment 
of  such  damages  where  they  should  be  for  a  considerable  amount.  My 
opinion  is,  that  the  Judgment  is  of  the  same  force  and  efficacy  as  any 
^^er  judgment  which  may  be  rendered  against  the  city,  subject,  per- 
jiaps.  to  the  duty  of  first  presenting  it  to  the  treasurei-. 

It  is  plain  enough  that  it  would  not  be  a  judicious  administration  of  the 
affairs  of  a  cit}'  to  permit  its  property  to  be  subjected  to  a  forced  sale 
on  execution  ;  and  hence  it  has  become  a  usual  practice  to  add  to  the 
sums  included  in  the  annual  tax  levy  an}-  amount  for  which  judgments 
have  been  recovered  against  the  corporation,   and   to  authorize  the 
borrowing  of  money,   if  necessary-,   in  order  to  pay  such  judgments. 
Instances  of  such  legislation  occur  in  many  of  the  recent  statutes. 
Laws  of  1863,  p.  411,   §  6  ;  id.,  1864,   p.  938,   §  1,  p.  946,  §  5.)     A 
unicipal  corporation,  equall}'  with  a  private  corporation,  may  have  its 
l^roperty  taken  in  execution,  if  payment  of  a  judgment  is  not  otherwise 
ade.     I  am  far  from  supposing,  however,  that  such  estate,  real  or  per- 
^  sonal,  as  may  by  law,  or  by  authorized  acts  of  the  cit}'  government,  be 

yy^*^  devoted  to  public  use,  such  as  the  public  edifices,  or  their  furniture  or 
'  "^Y "  .  ornaments,  or  the  public  parks  or  grounds,  or  such  as  may  be  legally 
S^^*"^  "^  pledged  for  the  payment  of  its  debt,  can  be  seized  to  satisfy  a  judg- 
T**^^^^''^'^'^^*^^nent.  Such,  clearly,  cannot  be  the  case,  for  these  structures  are 
"^^'''^?*~^  public  property,  devoted  to  specific  public  uses,  in  the  same  sense  as 
*"*^*-'*-*'*-*''*»^milar  subjects  in  the  use  of  the  State  government.  The  argument 
that  I  am  examining  supposes  that  the  cit}'  ma}'  possess  other  prop- 
ert}',  held  for  purposes  of  income  or  for  sale,  and  unconnected  with 
any  use  for  the  purposes  of  the  municipal  government.  Such  property, 
the  defendants'  counsel  insists,  and  for  the  purpose  of  the  argument  I 
lu^  CtrvKjo.'  concede,  is  subject  to  be  levied  on  and  sold  to  satisfy  a  judgment  ren- 
'>^i^^  dered  against  the  cit}-  corporation.     The  true  answer  to  the  position 

that  such  seizure  would  be  a  violation  of  tlie  constitutional  protection 
of  private  property  is,  that  it  is  not  private  within  the  sense  of  that 
provision.  City  corporations  arc  emanations  of  the  supreme  law  mak; 
ing  power  of  the  ^State|.  and  tliey  :ire  cstnblislied  U)y  the  more  convenient 
"[ovcrnmcnt  ot  the  people  within  tlieir  hinils.  In  this  respect,  corpoTa"- 
tions  chartered  by  the  crown  of  England,  and  confirmed  at  the  revolu- 
tion, stand  on  the  same  footing  witli  similar  corporations  created  by 
the  legislature.  Their  boards  of  aldermea  and  councilmen  and  other 
officers  are  as  trul}'  public  officers  as  the  boards  of  supervisors,  or  the 
sheriffs  and  clerks  of  counties  ;  and  the  property  intrusted  to  their  care 
and  management  is  as  essentially  {)ublic  property'  as  that  confided  to 
tlie  administration  of  similar  official  agencies  in  counties  and  towns. 
In  cities,  for  reasons  partly  technical,  and  in  part  founded  upon  mo- 
tives of  convenience,  the  title  is  vested  in  the  corporate  bod3\  It  is 
not  thereby  shielded  from  the  control  of  the  legislature,  as  the  supreme 
law  making  power  of  the  State.     Let  us  suppose  the  city  to  be  the  owner 


DARLINGTON  V.   MAYOR  &C.  OF  NEW  YORK.         45 

of  a  parcel  of  land  not  adapted  to  any  municipal  use,  but  valuable  onlv 
for  sale  to  private  persons  for  building  purposes,  or  the  like.  No  one, 
I  think,  can  doubt  but  what  it  would  be  competent  for  the  legislature 
to  direct  it  to  be  sold,  and  the  proceeds  to  be  devoted  to  some  munici- 
pal or  other  public  purpose,  within  the  city,  as  a  court  house,  a  hospital, 
or  the  like  ;  and  yet,  if  the  argument  on  behalf  of  tlie  defendants  is 
sound,  it  would  be  the  taking  of  private  property  for  public  use  with- 
out compensation,  and  the  act  would  be  void. 

What  has  been  actually  done  respecting  such  city  property,  in  the 
present  case,  if  a  judgment  for  riot  damages  has  the  effect  which  the 
argument  supposes,  and  which  I  attribute  to  it,  is  to  render  it  liable  to 
sale  on  execution,  to  satisfy  a  liability  of  the  city  arising  under  the 
riot  act ;  and  this  has  been  done  under  the  express  uuthority  of 
the  legislature.  The  vice  of  the  argument  of  the  defendant  is,  that  it^ 
assimilates  the  condition  of  the  city,  in  respect  to  the  property  to  ^ 
which  it  has  title,  to  that  of  an  individual  or  a  private  corporation,  and 
denies  to  the  legislature  any  power  over  it  which  it  would  not  possess 
over  the  fortunes  of  a  private  citizen. 

In  respect  to  its  powers,  the  corporate  body  is  understood  to  be  tb(f^^yrVvAA/»»  .C 
trustees  of  the  people  represented  by  the  supreme  legislative  power  of  /^  o^tFia- 
the  State,  but  in  regard  to  its  property  it  is  argued  that  there  are  no  '  «^  Y^''^ 
beneficiaries.  The  propert}',  it  is  insisted,  is  private,  and  hence  the  fv»-«jAixuA- 
legislature  has  no  Ipgitim.ite  control  over  it.  '^  ^"^"^ 

But  in  what  sense  can  this  city  property  be  said  to  be  private?  It^ 
ccrtainl}'  does  not  belong^to  the  ma\or  or  any  or  all  of  the  members  of 
the  common  council,  nor  to  the  common  people  as  individual  propert\". 
Xj^osevelt  V.  Draper,  23  N.  Y.,  318.)  If  one  of  these  functionaries 
should  appropriate  it  or  its  avails  to  his  own  use,  it  would  be  the  crime 
of  embezzlement,  and  if  one  of  the  people  not  clothed  with  official 
station  should  do  the  like,  it  would  be  the  offense  of  larcen}-. 
Should  it  be  said  that  like  all  corporate  property,  it  belongs  to  the 
ideal  being,  the  corporation,  and  that  its  title  is  beneficial  and  not 
fiduciary,  that  answer  would  not  avoid  the  difficulty.  Indeed  it  would 
not  be  sound.  A  corporation,  as  such,  has  no  human  wants  to  be 
supplied.  It  cannot  eat  or  drink,  or  wear  clothing,  or  live  in  houses. 
It  is  the  representative  or  trustee  of  somebody,  or  of  some  aggregation 
of  persons.  We  cannot  conceive  the  idea  of  an  aggregate  corporation 
which  does  not  hold  its  i^roperty  and  franchise  for  some  use,  public  or 
private^  The  corporation  of  Dartmouth  College  was  held  to  be  the 
trustee  of  tlie  donors,  or  of  the  3'outh  needing  education  and  moral  and 
intellectual  training.  The  cor|)oration  of  New  York,  in  my  opinion,  is 
the  trustee  of  the  inhabitants  of  that  city.  The  property,  in  a  general 
and  substantial,  although  not  a  technical  sense,  is  held  in  trust  for 
them.  They  are  the  people  of  this  State  —  inhabiting  that  particular 
subdivision  of  its  territor}-  —  a  fluctuating  class  constantly  passing  out 


46 


PKOPKIETORS    OF   MOUNT    HOPE   CEMETEKY    V.    BOSTON. 


of  the  scope  of  the  trust  by  removal  and  death,  and  as  constantly 
renewed  by  fresh  accretions  of  population.  It  was  granted  for  their 
luse  and  is  held  for  their  benefit.  The  powers  of  local  government  com- 
/mitted  to  the  corporation  are  precisely  of  the  same  character.  Thev 
I  were  granted  and  have  been  confirmed  and  regulated  for  the  good 
1  government  of  the  same  public,  to  preserve  order  and  obedience  to  law, 
(and  to  ameliorate  and  improve  their  condition  and  subserve  their  con- 
jvenience  as  a  community. 

There  are  a  few  cases  which  countenance,  to  a  certain  extent,  the 
views  of  the  defendants'  counsel,  which  will  be  briefly  noticed.  [The 
learned  Judge  then  commented  upon  JBailey  v.  Mayor  of  Neio  YorJc^ 
3  Hill,  531 ;  Brittony.  The  Mayor,  dc,  21  Howard  Practice  Rep.  251  ; 
Benson  \.  The  Mayor,  c&c,  10  Barbour,  223;  People  \.  Ilaices,  37 
Barbour,  440  ;  and  Atkins  v.  Bandolph,  31  Vermont,  226.] 

It  is  unnecessary  to  say  whether  the  legislative  jurisdiction  would 
extend  to  diverting  the  city  proi^crty  to  other  public  use  than  such  as 
concerns  the  city,  or  its  inhabitants  j  for  this  act,  if  the  effect  suggested 
is  attributed  to  the  judgment  for  riot  damages,  devotes  the  property 
which  may  be  seized  on  execution  to  legitimate  city  purposes,  namely, 
'<^^*^-*^''^*v tp  reimbursing  those  who  have  suffered  damages  on  account  of  the  in- 
^''^^tSSSiL^  -  efficiency  of  the  cit}'  authorities  to  protect  private  property  from  the 
N^''^""  '^aggressions  of  a  mob.  I  am  of  opinion  that  the  order  appealed  from 
v-\^  ^  should  be  affirmed,  on  the  ground  that  the  means  provided  by  the 
statute  to  raise  money  to  pay  for  the  damages  in  question  were  not~ 
hostile  to  any  provision  of  the  Constitution. 

All  the  judges  concurred,  except  Davies,  J.,  who,  though  for  affirm- 
ance, dissented  from  some  of  the  views  of  the  chief  judge,  in  respect  to 
the  corporate  propert}',  and  Ingkaham,  J.,  who  delivered  an  opinion  for 
reversal.  [Ingraham,  J.,  did  not  express  an^'  opinion  adverse  to  the 
validity  of  the  statute,  so  far  as  it  applies  to  the  county  or  the  power  of 
the  legislature  to  make  the  amount  recovered  a  count}'  charge,  to  be 
raised  by  taxation  or  loan,  but  simply  as  to  the  right  of  the  legislature 
to  impose  such  liabilities  upon  the  corporation  of  the  city  of  New  York 
so  as  to  bind  their  property  for  the  payment  of  the  recovery.] 

Judgment  affirmed. 


>~-«Xa- 


^^  '^'"^• 


t*""^"*^*^PROPRIETORS   OF   MOUNT   HOPE   CEMETERY  v 


kZ«       C»WV_OAjL.« 


O- 


BOSTON. 


A.    ci_<JC 


1893.     158  Massachusetts,  509. 


Petition  for  a  writ  of  mandamus  to  compel  the  city  of  Boston  to 
convey  Mount  Hope  Cemetery  to  the  petitioning  corporation  in  accord- 
ance with  Statute  1889,  Chapter  265.  Hearing  before  Knowlton,  J., 
who  reserved  the  case  for  the  full  court  on  the  petition,  answers,  and 


.    ^--^"^^  '  ^■"'■^■^  ^  Statement  abridged.     Part  of  opinion  omitted.  —  Ed. 


PROPEIETOES   OF   MOUNT   HOPE    CEMETERY   V.    BOSTON. 


47 


The  mate 


with  them,^ 


such  of  his  findings  as  were  competent  to  be  considered 
rial  facts  are  stated  in  the  opinion. 

W.  Gasto7i  cO  J.   B.  Ulchardson,  (S.   W.  Creech,  Jr., 
for  petitioners. 

T.  M.  Babson  and  S.  D.  Charles,  for  respondents. 

Allen,  J.  Over  property  which  a  city  or  town  has  acquired  anfy 
holds  exclusively  for  purposes  deemed  strictly  public,  that  is,  which 
the  city  or  town  holds  merely  as  an  agency  of  the  State  government 
for  the  performance  of  the  strictly  public  duties  devolved  upon  it, 
the  Legislature  may  exercise  a  control  to  the  extent  of  requiring  the 
city  or  town,  without  receiving  compensation  therefor,  to  transfer 
such  property  to  some  other  agency  of  the  government  appointed  to 
perform  similar  duties,  and  to  be  used  for  similar  purposes,  or  per- 
haps  for  other  purposes  strictly  public  in  their  character.  Thus  much 
is  admitted  on  behalf  of  the  city,  and  the  doctrine  is  stated  and  illus- 
trated in  many  decisions.  Weymouth  &  Braintree  Fire  District  v. 
County  Commissioners,  108  Mass.  142.  Whitney  v.  Stow,  111  Mass. 
368.  Rawson  v.  Spencer,  113  Mass.  40.  Stone  v.  Charlestown,  114 
Mass.  214.  Kingman,  petitioner,  153  Mass.  566,  573.  Meriwetliet- 
v.  Garrett,  102  U.  S.  472.  Mayor,  <S;c.  of  Baltimore  v.  State,  15 
Md.  376. 

By  a  quite  general  concurrence  of  opinion,  however,  this  legisla-^^^^^JL  l^^suy, 
tive  PO^^Q^co^trol  is  not  universal,  and  does  nole^S^enjcl  to^propertyLc^^        ^ 


acquTrecniiyarciYy  or  town  for  special  pur])oses  not  deemed  strictly 
ana  exclusive^),'  public  and...xiQliti,pa,l,  but  in  respect  to  which^a  citv 
or  town  IS  cleemed  rather  to  have  a  right  of  private  ownership,  of 
wmcn  it  cannot  be  deprived   against   its  will,  save    by  the   right  of" 


eminent  domain  with  payment  of  compensation.  This  distiiiclioa 
we  deem  to  be  well  founded,  but  no  exact  or  full  enunieruliun  can  be 
made  of  the  kinds  of  property  which  will  fall  within  it,  because  in 
different  States  similar  kinds  of  property  may  be  held  under  different 
laws  and  with  different  duties  and  obligations,  so  that  a  kind  of 
property  might  in  one  State  be  held  strictly  for  public  uses,  while  in 
another  State  it  might  not  be.  But  the  general  doctrine  that  cities  N  ( 
and  towns  may  have  a  private  ownership  of  property  which  cannot  \ 
be  wholly  controlled  by  the  State  government,  though  the  uses  of  it  / 
may  be  in  part  tor  the  benefit  of  the  community  as  a  community,  and  \ 
not  merely  as  individuals,  is  now  well  established  in  most  of  the  / 
jurisdictions  where  the  question  has  arisen.  Board  of  Commissioners  \ 
V.  Lucas,  93  U.  S.  108,  114,  115.  Mount  Pleasant  v.  Beckwith, 
100  U.  S.  514,  533.  Railroad  Co.  v.  Ellerman,  105  U.  S.  166,  172. 
Cannon  v.  New  Orleans,  20  Wall.  577.  Mayor,  &c.  of  Neiv  York 
V.  Second  Avenue  Railroad,  32  N.  Y.  261.  People  v.  Batchellor ,  53 
N.  Y.  128.  People  v.  O'Brien,  111  N.  Y.  1,  42.  Webb  v.  Mayor, 
&c.  of  Neiv  York,  64  How.  Pr.  10.  Montpelier  v.  East  Montjjelier, 
29  Vt.  12.  Westerti  Saving  Fund  Society  v.  Philadelphia,  31  Penn. 
St.  175.     Peu2jle  v.  Detroit,  28  Mich.  228,  235,  236,  238.     Peojde  v. 


48  PKOPRIETOKS    OF   MOUNT    HOPE   CEMETERY    V.   BOSTON. 

Hurlbut,  24  Mich.  44.  Detroit  v.  Detroit  &  Howell  Plank  Road,  43 
Mich.  140.  Thompson  v.  3Iora7i,  44  Mich.  602.  Louisville  v.  U7ii- 
versity  of  Louisville,  15  B.  Mod.  (Ky.)  642.  Richland  v.  Lawrence, 
12  111.  1.  People  V.  Mayor,  &c.  of  Chicago,  51  111.  1.  Grogan  v. 
San  Francisco,  18  Cal.  590.  Hewison  v.  New  Haven,  37  Conn.  475. 
The  sarae  conclusion  "is  arrived  at,  after  a  full  and  clear  discussion 
of  the  subject,  in  Dillon,  Mun.  Corp.  (4th  ed.)  §§  66-68,  and  notes. 
See  also  Coolers  Taxation,  688. 

In   this  Commonwealth    the    question    has    not   directly   arisen    in 
reference  to  the  power  of  the  Legislature  to  compel  a  transfer  of  the 
property  of  a  city  or  town,  but  the  double  character  of  cities  and 
towns  in  reference  to  their  duties  and  liabilities  has  very  often  been 
•■  c>s\^^    , adverted  to.     When  a  city  or  town  acts  merely  as  an  agent  of  the 
^"■;^*^^-^ (State  government  in  performing  duties  for  the  general  benefit,  it  is 
sually    held    free   from    liability    to   persons    who   sustain    injuries 
hrough  negligence,  except  in  the  case  of  defective  highways,  which 
^-«-<_»jofci^|(.oiistitute  an  exception   to  the   general  rule.     But  in   other   cases, 
where  an  element  partly  commercial  comes  in,  a  liability  is  usually 
'''^^^'^:*^^-'*^  J  enforced.     Tindley  v.   Salem,  137  Mass.  171,  172,  and  cases  cited. 
Warden  v.  New  Bedford,  131  Mass.  23.     Bailey  v.  Mayor,  &c.  of  New 
York,  3  Hill   (N.  Y.),   531.     In  such  cases,   the  ultimate  question 
usually  is,  Did  the  Legislature  mean  that  the  city  or  town,  or  other 
creature  of  statute,  should  be  liable  for  negligence,  or  did  it  not? 
Howard  v.   Worcester,  153  Mass.  426.      Southampton  &  Itchin  Bridge 
V.    Southampton,  8  El.  &  Bl.  801,  812.      Cowley  v.    Mayor,    &c.    of 
Sunderland,  6  H.  &  N.  565,  573.     Mersey  Docks  v.  Gibbs,  11  H.  L. 
Cas.    686,    707,    709,    710,    721.     But   in   determining   this   question 
courts  make  a  discrimination  in  respect  to  the  character  of  the  duties 
and  of   the   property  which  are   involved.     Nowhere   else   has  this 
ground  of  distinction  been  more  often  or  more  strongly  insisted  on 
than   in   Massachusetts.     See  cases  cited   in   Tindley  v.  Salem,  137 
Mass.   171,  174;  Pratt  v.    Weymouth,  147  Mass.   245,  254;  Neff  \. 
Wellesley,  148  Mass.  487,  493;  Lincoln  v.   Boston,   148  Mass.  578; 
Curranv.  Boston,  151  Mass.  505,  508.     In  the  recent  case  of  Merri- 
mack River  Savings  Bank  v.  Ljowell,  152  Mass.  556,  we  had  occa- 
sion to  make  an  analogous  discrimination  between  the  general  duty 
which  the  city  of  Lowell  was  under  to  furnish  water  on  equal  terms 
to   all    its    inhabitants,   and    the    particular    undertaking   to  furnish 
water  for  a  year  to  an  individual  who  had  paid  a  year's  rates  in 
advance. 

In  the  case  before  us,  we  have  to  determine  whether  the  title  of  the 
city  of  Boston  to  the  Mount  Hope  Cemetery  is  subject  to  legislative 
control,  and  this  involves  an  inquiry  to  some  extent  into  the  usages 
and  laws  in  this  Commonwealth  relating  to  burying  grounds,  with  a 
view  of  ascertaining  whether,  in  the  ownership  of  such  property, 
towns  have  heretofore  been  regarded  or  have  acted  merely  as  agencies 
of  the  State  government. 


PROPRIETORS    OF    MOUNT   HOPE    CEMETERY    V.    BOSTON".  49 

[After  a  very  full  statement  as  to  the  usages  and  legislation  of  the 
State,  the  opinion  proceeds:] 

Such  being  the  laws  and  usages  of  the  Commonwealth  before  the 
time  when  the  city  of  Boston  made  its  first  purchase  of  the  Mount 
Hope  Cemetery,  the  city,  by  St.  1849,  c.  150,  was  "  authorized  to 
purchase  and  hold  land  for  a  public  cemetery  in  any  town  in  this 
Commonwealth,  and  to  make  and  establish  all  suitable  rules,  orders, 
and  regulations  for  the  interment  of  the  dead  therein,  to  the  same 
extent  that  the  said  city  of  Boston  is  now  authorized  to  make  such 
rules,  orders,  and  regulations  for  the  interment  of  the  dead  within 
the  limits  of  the  said  city." 

Before  any  purchase  under  this  statute  was  made,  a  general  statute 
was  passed  which  included  Boston,  St.  1855,  c.  257,  §  1,  providing 
that  "  Each  city  and  town  in  the  Commonwealth  shall  provide  one  or 
more  suitable  places  for  a  burial  ground,  within  which  the  bodies  of 
persons  dying  within  their  respective  limits  may  be  interred,"  and 
forbidding  the  use  for  the  burial  of  the  dead  of  any  land  in  any  city 
or  town  other  than  that  already  used  or  appropriated  for  that  pur- 
pose, without  permission.  It  also  was,  and  long  had  been,  the  duty 
of  the  overseers  of  the  poor  of  each  town  to  bury  paupers  and  indi- 
gent strangers  dying  therein.  St.  1793,  c.  59,  §§  9,  13.  Rev.  Sts. 
c.  46,  §§  13,  16.  (See  also,  for  later  statutes  on  the  same  subject. 
Gen.  Sts.  c.  70,  §§  12,  15;  Pub.  Sts.  c.  84,  §§  14,  17,  enlarging  their 
duties.)  Being  under  these  positive  duties,  and  having  authority 
under  St.  1849,  c.  150,  to  go  outside  of  the  city  limits  for  a  burial 
ground,  the  city  of  Boston  purchased  the  largest  portion  of  the  land 
of  the  Mount  Hope  Cemeter^'in  West  Roxbury  in  1857,  and  has  since 
added  to  the  same  at  various  times,  and  has  received  large  sums  from 
the  sale  of  lots  or  burial  rights,  and  has  expended  large  sums  in  the 
care  and  management  thereof,  and  about  forty  acres  still  remain 
unsold.  There  is  no  suggestion  in  argument  that  in  any  of  these 
particulars  it  has  acted  beyond  its  powers. 

We  are  not  aware  that  the  sale  of  burial  rights  in  this  cemetery  has 
ever  been  limited  to  inhabitants  of  Boston.  No  such  limitation  is 
expressed  in  the  ordinance,  but  sales  may  be  made  to  any  person  or 
persons.  Rev.  Ordinances,  1885,  c.  47,  §  4.  By  St.  1877,  c.  69, 
§  7,  re-enacted  in  Pub.  Sts.  c.  82,  §  15,  towns  may  sell  exclusive 
burial  rights  to  any  persons,  whether  residents  of  the  town  or  other- 
wise, in  their  cemeteries;  and  this  right  extends  to  cities.  Pub.  Sts. 
c.  3,  §  3,  cl.  23.  There  can  be  no  doubt  that  the  city  held  this  ceme-)^-*^*^"^ 
tery  not  only  for  the  b  irial  of  poor  persons,  but  with  the  right  toT ^J^*^^^^^^-*-**^  < 
Tnake  sales  of  burial  rights  to  any  persons  who  might  wish  to  pur-\  V-*-*-^  ,X/\/-~i 
chase  them,  whether  residents  or  non-residents.  With  these  duties,'^-*"^*"^.  '^"^ 
and  also  with  these  rigbls  ana  privileges,  the  city  has  acquired  and  ^^'''~^  "*-'^ 
improved  this  property.  It  is  not  as  if  the  land  had  been  procured  '^  '^"^r^  '^ 
and  used  exclusively  as  a  place  for  the  free  burial  of  the  poor,  or  of  ^^-*'^^'^j/vju 
inhabitants  of  Boston.     In  addition  to  these  purposes,  the  city  has   "^^^^^^-a 

4 


50 


PROPEIETOKS    OF   MOUNT   HOPE    CEMETERY   V.    BOSTON. 


iX. 


been  enabled  to  provide  a  well  ordered  cemetery,  with  lots  open  to 
purchase,  under. carefully  prepared  rules  and  regulations,  and  thus  to 
afford  to  its  inhabitants  the  opportunity  to  buy  burial  places  without 
being  compelled  to  resort  to  private  cemetery  companies,  where  the 
expense  would  probably  be  greater;  and  it  has  done  this  upon  such 
terms  that  the  burial  of  its  paupers  has  been  practically  without 
expense  in  the  past,  and  it  has  about  forty  acres  remaining,  the  pro- 
ceeds of  which  when  sold  would  go  into  the  city  treasury  but  for  the 
requirement  of  St.  1889,  c.  265. 

The  St.  of  1889,  c.  265,  requires  the  city  to  transfer  to  the  newly 
formed  corporation,  called  "  The  Proprietors  of  Mount  Hope  Ceme- 
tery," without  compensation,  this  cemetery,  with  the  personal  prop- 
erty pertaining  thereto,  and  with  the  right  to  any  unpaid  balances 
remaining  due  for  lots  already  sold,  and  the  annual  income  of  certain 
funds  held  for  the  perpetual  care  of  lots.  If  such  transfer  is  made, 
all  that  the  city  would  retain  would  be  the  right  to  bury  such  persons 
as  it  is  or  may  be  by  law  obliged  to  bury  in  a  certain  prescribed  por- 
tion of  the  cemetery.  Its  previous  conveyances  of  lots  and  rights  of 
burial  are  expressly  confirmed.  But  it  is  apparent  from  the  consider- 
ations heretofore  expressed,  that  this  is  not  property  which  is  held 
.exclusively  for  purposes  strictly  public.  The  city  of  Boston  is  pos- 
sessed of  much  other  property  which  in  a  certain  sense  and  to  a  cer- 
tain extent  is  held  for  the  benefit  of  the  public,  but  in  other  respects 
is  held  more  like  the  property  of  a  private  corporation.  Notably 
among  these  may  be  mentioned  its  sj^stem  of  water  works,  its  system 
of  parks,  its  market,  its  hospital,  and  its  library.  In  establishing 
all  of  these,  the  city  has  not  acted  strictly  as  an  agent  of  the  State 
government,  for  the  accomplishment  of  general  public  or  political 
purposes,  but  rather  with  special  reference  to  the  benefit  of  its  own 
inhabitants.  If  its  cemetery  is  under  legislative  control,  so  that  a 
transfer  of  it  without  compensation  can  be  required,  it  is  not  easy  to 
see  why  the  other  properties  mentioned  are  not  also;  and  all  the  other 
cities  and  towns  which  own  cemeteries  or  other  property  of  the  kinds 
mentioned  might  be  under  a  similar  liability. 

In  view  of  all  these  considerations,  the  conclusion  to  which  we  have 
ome  is  that. the  cemetery  falls  within  the  class  of  property  which  the 
city  owns  in  ils  ])rivate  or  proprietary  character,  as  a  private  corpo- 
rulioii  iiiiiclii  (M\-Tt  it,  and  that  its  ownership  is  protected  under  the 
Coiisiitutions  of  Massachusetts  and  of  the  United  States  so  that  the 
Lcgisl:iiiiic  lias  no  power  to  require  its  transfer  without  compensa- 
^on.     (oust.    of*Mass.,  Dec.    of  Kights,  Art.   X.    Const,  of  U.  S., 

ourteenth  Amendment. 

In  judging  of  the  validity  of  the  particular  statute  under  consider- 
ation, St.  1889,  c.  265,  there  are  other  reasons  leading  to  the  same 
result.  The  first  is,  that  the  duties  of  the  city  in  respect  to  provid- 
ing a  burial  place  for  the  poor  and  for  persons  dying  within  its  limits 
are  not  taken  away.     The  city  is  still  bound  to  provide  one  or  more 


PROPRIETORS    OF    MOUNT    HOPE    CEMETERY    V.    BOSTON. 


51 


suitable  places  for  the  interment  of  persons  dying  within  its  limits; 
Pub.  Sts.  c.  82,  §  9;  aud  it  is  still  bound  to  bury  its  paupers  and 
indigent  strangers.  Pub.  Sts.  c.  84,  §§  14,  17.  If  this  cemetery 
should  be  conveyed  away,  under  the  provisions  of  St.  1889,  c.  265, 
the  city  would  be  bound  to  provide  another.  Certainly  the  mere  con- 
tinuance of  the  city's  right  to  bury  in  a  limited  portion  of  the  ceme- 
tery such  persons  as  the  law  requires  it  to  bury  is  not  a  provision 
adequate  to  meet  the  requirement  of  Pub.  Sts.  c.  82,  §  9,  and  by  the 
report  of  facts  the  portion  referred  to  is  not  likely  to  suffice  even  for 
the  burial  of  paupers  for  any  great  length  of  time.  The  city  is  bound 
to  provide  a  suitable  place  for  the  interment  of  persons  dying  within 
its  limits;  not  poor  persons  only,  but  all  persons;  and  the  burial  of 
the  dead  in  ground  not  sanctioned  by  the  city  authorities  is  strictly 
forbidden.  So  far  as  we  know,  it  has  never  been  held  that  the  Legis- 
lature may  require  a  city  or  town,  without  compensation,  to  transfer 
property  which  it  has  bought  in  order  to  enable  it  to  discharge  its 
statutory  obligations,  while  at  the  same  time  its  duties  and  obliga- 
tions continue  to  rest  upon  it.  On  the  other  hand,  it  is  justly  assumed 
that,  if  the  property  is  to  be  transferred,  the  duties  will  be  trans- 
ferred also.  Raioson  v,  Spencer^  113  Mass.  40.  Commonivealth  v. 
Flaisted,  148  Mass.  375,  386.  Whitney  v.  Stoiv,  111  Mass.  368. 
Ilayor,  &c.  of  Baltimore  v.  State,  15  Md.  376.  But  the  duty  of 
burying  paupers,  and  of  providing  a  place  for  the  interment  of  all 
persons  dying  in  Boston,  is  not  imposed  upon  the  petitioner.  The 
duties  of  the  city,  and  the  duties  of  the  petitioner  under  St.  1889,  c. 
265,  are  not  the  same. 

Moreover,  the  legislatiy£.>pQ3gei?-over.  municipal  property,  when  it) 
exists,  does  not  extend  so  far  as  to  enable  the  Legislature  to  require^ 
^  tranM'er  without  compensation  to  a  pru^te  person  or  private  corpo- 
rationTjTe'gSntrol  whicn  me  ..Lejjisiature  may  exercise  is  limited/ 
i^nuTsT_aiaL-D3LJflT^''^  ageacies  a,ad..XQ-r.„Rublic  uses  exclusively. .   If  j 
the  city  has  purchased  property  for  purposes  which  are  strictly  and' 
purely  public,  as  a  mere  instrumentality  of  the  State,  such  property 
is  so  far  subject  to  the  control  of  the  Legislature  that  other  instru- 
mentalities of  the  State  may  be  substituted  for  its  management  and 
care ;  but  even  the  State  itself  has  no  power  to  require  the  city  to' 
transfer  t£e  title  from  public  to  private  ownership.     Upon  the  divi- 
sioiT  or  counties,  towns,  scnooi  districts,  public  property  with  the 
public  duty  connected  with  it  is  often  transferred  from  one  public 
corporation  to  another  public  corporation.     But  it  was  never  heard 
of  that  the  Legislature  could  require  the  city  without  compensation  to 
transfer  its  city  hall  to  a  railroad  corporation,  to  be  used  for  a  rail- 
way station,  merely  because  the  latter  corporation  has  a  charter  from 
the  Legislature,  and  owes  certain  duties  to  the  public. 

It  is  contended  in  behalf  of  the  petitioner  that  it  is  a  public  corpo- 
ration, wholly  under  the  control  of  the  Legislature.  But  it  is  an  erroi 
to  suppose  that  a  corporation  becomes  a  public  oue  merely  by  receiv. 


.<u.v;x 


52  PKOFEIETORS    OF   MOUNT    HOPE    CEMETERY   V.    BOSTON, 

ing  a  chaiter  from  the  Legislature,  by  owing  certain  duties  to  the 
public,  and  by  being  subject  to  rules  and  regulations  established  in 
the  exercise  of  the  police  power.  There  is  nothing  in  the  case  cited 
—  JVoodlawn  Cemetery  v.  Everett,  118  Mass.  354  —  to  show  that  the 
Woodlawn  Cemetery  was  regarded  as  a  public  corporation.  It  clearly 
was  not  so.  It  was  said  to  be  subject  to  the  police  power,  like  other 
cemetery  corporations.  Commonwealth  v.  Fahey^  5  Cush.  408.  But 
liability  to  the  exercise  of  the  police  power  rest;S  on  different  con- 
siderations, and  that  power  does  not  extend  so  far  as  to  include  a 
right  to  require  the  transfer  of  property  to  another  person  without 
compensation.  The  distinction  between  public  and  private  corpora^ 
tions  is  well  marked  and  clear.  Public  corporations  are  govern- 
mental  and  political,  like  counties,  cities,  towns,  school  districts,  — 
mere  aepartments  of  Lh(i  govemmeut,  established  by  the  Legislature, 
and  modified,  and  destroyed,  without  their  own  consent.  Private 
corporations  are  formed  IJyThe  voluntary  agreement  ot  their  mem- 
I  bers,  and  cannot  be  established  without  the  consent  of  the  corpora- 
'  tors.  Public  corporations,  as  has  been  seen,  may  to  some  extent  in 
relation  to  the  ownership  of  property  partake  of  the  character  of  pri- 
vate corporations ;  and,  on  the  other  hand,  many  private  corporations 
are  charged  with  some  duties  and  obligations  to  the  public,  as  in  the 
case  of  railroad,  telegraph,  canal,  bridge,  gas,  and  water  companies. 
Jjuvihard  v.  Stearns,  4  Cush.  60.  Worcester  v.  Western  Bailroad., 
4  Met.  564.  Commonwealth  v.  Smith,  10  Allen,  448,  455.  But  the 
general  line  of  distinction  between  the  two  classes  of  corporations  is 
clear.  Linehan  v.  Cambridge,  109  Mass.  212.  Raivson  v.  Spencer^ 
113  Mass.  40,  45.  Morawetz  on  Corp.  §§  3,  24,  1114.  2  Kent  Com. 
275.  1  Dillon,  Mun.  Corp.  (4th  ed.)  §§  19,  22,  44,  54,  56.  Angell 
&  Ames  on  Corp.  §§  14,  30,  et  seq.  University  of  Maryland  v.  Wil- 
liams, 9  Gill  &  J.  365,  397.  Ten  Eyck  v.  Delaware  &  Baritan 
Canal  Co.  3  Harr.  (N.  J.)  200.  Hanson  v.  Vernon,  27  Iowa,  28,  53. 
In  re  Deansville  Cemetery  Association,  66  N.  Y.  569. 

An  examination  of  the  provisions  of  St.  1889,  c.  265,  leaves  no 
-  ^r\>'«'-a:^/  doubt  that  the  petitioner  falls  within  the  class  of  private  corpora- 
>'  1  tions..     Its  corporate  members  are  such  of  the  proprietors  of  burial 

lots  in  the  existing  cemetery  as  shall  accept  the  act  and  notify  the 
clerk  of  the  corporation  of  such  acceptance.  Membership  is  wholly 
voluntary,  and  in  point  of  fact  only  about  one  person  out  of  eight 
who  were  entitled  to  do  so  became  members.  The  corporation  is  to 
"r)e  subject  to  all  the  provisions  of  the  Pub.  Sts.  c.  82,  so  far  as  they 
can  be  applied  thereto,  and  except  so  far  as  inconsistent  with  St. 
1889,  c.  265.  Chapter  82  of  tde  Public'  Statutes  relates  mostly  to 
private  cemetery  companies,  which  may  be  organized  by  any  ten  or 
more  persons.  Jenkins  v.  Andover,  103  Mass.  94,  104.  Such  pri- 
vate cemetery  corporation  may  lay  out  its  real  estate  into  lots,  and 
upon  such  terms,  conditions,  and  regulations  as  it  shall  prescribe 
moy  grant  and  convey  the  exclusive  right  of  burial,  etc.     There  is 


PROPRIETORS   OF   MOUNT   HOPE    CEMETERY   V.   BOSTON.  53 

nothing  in  St.  1880,  c.  265,  limiting  ttiis  right,  unless  in  §  5,  provid- 
ing that  the  city  shall  continue  to  have  the  right  of  burial,  in  a  cer- 
tain prescribed  portion  of  the  cemetery,  of  persons  for  whose  burial 
it  is  or  may  be  bound  by  law  to  provide,  viz.  paupers  and  indigent 
strangers.  Subject  to  this,  the  petitioner  may  sell  all  the  remaining 
lots,  as  fast  as  it  can,  to  all  applicants.  It  is  true,  under  Pub.  Sts. 
c.  82,  §  2,  it  cannot  make  dividends  from  the  proceeds  of  sales;  but 
the  Proprietors  of  the  Cemetery  at  Mount  Auburn,  and  many  other 
private  cemetery  corporations,  are  under  the  like  restriction.  If  the 
city  retains  the  ownership,  it  may  devote  the  proceeds  of  sales  of 
lots,  after  providing  for  the  suitable  maintenance  of  the  cemetery, 
towards  the  purchase  of  a  new  burial  place  for  its  inhabitants  when 
occasion  may  require.  If  the  petitioner  owns  it,  the  city  will  lose  ^ 
that  advantage.     No  duty  to  the  public  is  imposed  upon  the  peti-^  ^' 


tioner  by  the  terms  of  the  statute,  unless  it  is  contained  in  the  words  y  (3..^,^35,_^ 

in  §  4  of  St.  1889,  c.  265,  "  to  be  held  by  said  corporation,  so  far  as  ^ 

consistent  herewith,  for  the  same  uses  and  purposes,  and  charged  with 
the  same  duties,  trusts,  and  liabilities  for  and  subject  to  which  the 
same  are  now  held  by  said  city  ";  and  the  further  words,  "  and  the  said 
corporation  shall  have  in  respect  of  said  cemetery  all  rights,  powers, 
and  privileges,  and  be  subject  to  all  duties,  obligations,  and  liabili- 
ties, now  had  or  sustained  by  said  cit}'  in  respect  thereof."  What 
these  duties  towards  the  inhabitants  of  Boston  ai'e,  it  may  be  difficult 
to  sa}'.  Certainly  there  appears  to  be  nothing  binding  the  corpora- 
tion to  give  any  preference  to  inhabitants  of  Boston  in  the  sale  of 
burial  rights,  or  to  prevent  a  substantial  increase  in  the  prices  of 
such  burial  rights,  at  the  will  of  the  corporation.  In  short,  there  is 
nothing  in  the  act  to  secure  to  the  inhabitants  of  Boston  those  privi- 
leges in  respect  to  burial  rights  which  they  might  properly  expect, 
even  if  they  could  not  legally  demand  the  same,  from  the  city  itself. 
There  is  therefore  no  ground  on  which  the  petitioner  can  be  said  in 
any  just  sense  to  oe  a  public  corporation,  and  its  duties  to  the  inhab- 
itTTnts  of  Boston  are  at  best  but  vague  and  shadowy. 

The  city  further  urges  that  the  obligation  of  the  contracts  into 
which  it  has  entered  with  purchasers  of  burial  rights,  for  the  per- 
petual care  of  their  lots,  would  be  impaired  by  the  provisions  of  St. 
1889,  c.  265.  Since,  for  the  reasons  already  given,  we  are  of  opinion 
that  the  statute  was  beyond  the  power  of  the  Legislature,  it  is  not 
necessary  to  consider  this  ground  of  objection  to  its  validity. 

Petition  dismissed. 


^^e^  h^- 


.^^ 


f 


54  HORNER  V.    COFFEY. 


i'^ 


CHAPTER  II. 

RIGHTS  AND  REMEDIES  OF  CREDITORS  —  HOW  AFFECTED 
BY  ACTS  OF   THE  LEGISLATURE. 


HORNER  V.  COFFEY. 

1853.     25  Mississippi,  434.1 

Fisher,  J.  This  case  is  before  us  upon  an  appeal  from  a  decree  of 
the  vice-chancer}'  court  at  Natchez. 

The  onl}'  point  presented  by  the  record  for  adjudication  is,  whether 
the  individual  property  of  the  appellee,  one  of  the  selectmen  and  an 
inhabitant  of  the  town  of  Grand  Gulf,  is  liable  to  IcA^y  for  the  purpose 
of  satisfying  a  judgment  against  the  president  and  selectmen  of  said 
town  in  their  corporate  capacit}'. 

The  seventh  section  of  the  act  of  the  legislature,  incorporating  the 
\A  r_|  town  of  Grand  Gulf,  says :  "■  That  the  said  president  and  selectmen 
— ;  »  ^^-*^  are  constituted  a  bod}'  politic  and  corporate  in  fact ;  and  in  the  name  of 
^^^'^ '  the  town  of  Grand  Gulf,  and  b}-  that  name,  they  and  their  successors 

*'''"^-*-'^^^  in  office  shall  have  perpetual  succession,  shall  have  a  common  seal,  ma}- 
( j<. ■\j&'»o.r\r^  purchase,  hold,  and  convey  propert}- ;  and  l)v  the  name  and  style  afore- 
>si^^5rvs/s»rv>w  said,  shall  be  persons  capable  in  law  of  suing  and  being  sued  in  all  man- 
's/^ ">^v^OC  ner  of  suits  or  actions,  either  at  law  or  in  equity,"  —  "  and  may  do  all 
^iio^.^^^^^^     other  acts  incident  to  bodies  corporate." 

,5v^  '^SJ(^  The  tenth  section  of  the  act,  gives  the  president  and  selectmen  power 

VjjA^j.^,^^  to  raise  a  revenue  for  town  purposes,  by  taxing  such  property  as  is 
^^^,_^^,,^  i^  liable  to  taxation  under  the  existing  laws  of  this  state,  "  Provided  such 
J-J^^^^j  tax  shall  not  exceed  twenty-five  cents  on  every  hundred  dollars'  worth 
4J>^jw--sl-^  of  such  property  in  any  one  year."  Acts  of  1833,  9G,  97.  These  being 
^-'^-'^-»"^<^-^  the  only  provisions  of  the  charter  bearing  upon  the  question  under  con- 
k^  ""Arv^Anrv .  sideration,  it  will  at  once  appear,  that  it  contains  no  express  provision 
-^» )  ^^^^^  i n  regard  to  the  right  asserted  by  the  appellant,  to  resort  to  the  indi^ 
*"^O^Ai  vidual  property  of  tho.  inli.nbitnnts  of  the  town,  for  the  purpose  of  djs; 
^j;r^^^j^^[Vj[^  cliargin<;  hor  jlld(';mpn^  nxrn.inst  the  corporation.^  Hence  we  must  look 
,,^^^^>--^  alonc!  to  the  common  law  for  the  rules  to  guide  us  in  our  decision. 

Witii  respect  to  private  corporations,  such  as  banks  or  insurance 
companies,  it  is  conceded,  that  no  individual  responsibility  attaches  to 

^  Statement  and  ar;;unioiits  omittoil.  —  Ed. 


HORNEll    V.    COFFEY.  55 

the  members  for  the  corporate  debts^     "  A  different  rule  prevails,"  say 
some  ortfie~autIiorities,  "  with  regard  to  the  inhabitants  of  any  district ; 
as  counties  or  towns  incorporated  by  statute,  which  come  under  the 
head  of  quasi  corporations  ;  for  against  them  no  private  action  will  lift 
unless  given  by  statute  ;   and  if  a  power  to  sue  them  is  given  b}'  statute, 
each  inhabitant  is  liable  to  satisfy  the  judgment."     Angell  &  Ames  on 
Corp.  498,  499.     The  same  rule  is  more  broadly  stated  by  the  supreme 
court  of  Connecticut,  in  the  case  of  Beardsley  v.  Smith,  16  Conn.  R. 
368.     The  court  on  that  occasion  used  the  following  language  :   "  We  ^-^^"^'^^f'^  ■  ' 
know,  that  the  relation  in  which  the  members  of  municipal  corporations  Vp^^"  ^^ 
in  this  State  have  been  supposed  to  stand  in  respect  to  the  corporation  JCi^^^^^  ^ 
itself,  as  well  as  to  its  creditors,  has  elsewhere  been  considered  in  some  -^->~«^^'^'^^ 
respects  peculiar.     We  have  treated  them,  for  some  purposes,  as  parties  ^^-'^'"*'^^ 
to  corporate  proceedings,  and  their  individualit}'  has  not  been  consid-       <>-»->*^- 
ered  as  merged  in  their  corporate  connection.     Though  corporators, 
they  have  been  holden  to  be  parties  to  suits  by  or  against  the  corpora- 
tion, and  individually  liable  for  its  debts."     "  Such  corporations  are  of 
a  public  and  political  character ;    they  exercise  a  portion  of  the  govern- 
ing power  of  the  State.     Statutes  impose  upon  them  important  public 
duties.     In  the  performance  of  these,  the}'  must  contract  debts  and 
habilities,  which  can  onl}-  be  discharged  b}-  a  resort  to  individuals,  either 
by  taxation  or  execution.     Taxation  in  most  cases  can  only  be  the  result 
of  the  voluntary  action  of  the  corporation,  dependent  upon  the  contin- 
gent will  of  a  majorit}-  of  the  corporators,  and  upon  their  tardy  and 
uncertain  action.     It  aflfords  no  security  to  creditors,  because  they  have 
no  power  over  it."  '^:i.»,>rw~.^  .>» 

The  same  doctrine,  in  language  equall}'  strong,  has  been,  in  repeated  ~yv,,^'W^-« 
decisions,  announced  by  the  supreme  court  of  Massachusetts,  and  it  is,  '\'*"*^^"~^'^ 
perhaps,  now  the  settled  law  of  all  the  New  England  States.-^     In  view  ^'"*"'""^"  ^ 
of  the  numerous  authorities,  emanating  from  judicial  tribunals  as  en- 
lightened as  those  of  the  New  England  States,  thus  settling  the  law,  we 
have  been  induced  to  give  the  question  involved  in  the  case  before  us 
a  much  more  thorough  examination  than  it  otherwise  would  have  re-a     v^  t>/^^ 
ceived  at  our  hands.     This  examination  has  onl}'  served  to  strengthen  xs#^  -vO&^ 
the  opposition  which  we  from  the  first  conceived  against  the  rule,  as  well    v>-eyvjtj»_ 
as  the  principles  upon  which  it  has  been  settled  b}'  the  authorities  cited. 
We  submit  with  all  proper  deference  and  respect,  that  neither  position 
assumed  bj'  the  court  in  the  case  of  beardsley  v.  Smith  can  be  sus- 
tained by  an}'  principle  of  the  common  law,  in  reference  to  the  inhabi- 
tants of  the  town  of  Grand  Gulf.     These  positions  are,  first,  that  the"^  ^  y-o^--s/ 
j^ihabitants  of  the  town  are  parties  to  all  suits  by  or  againstthe^orpora-    y^i.-s>5>^ 
tionj  and,  secondly,  the  charter  authorizing  a  suit  against  the  corpora-    I  "^^t^^^j-,^^ 
tion,  the  inhabitaots  are  personally  liable  to  discharge  the  judp^ment    1 
when  obtained. 


1  The  constitutionality  of  a  statute  permitting  the  judgment-creditor  of  the  town 
to  levy  upon  the  individual  property  of  the  inhabitants,  was  aflBrmed  in  Eames  v. 
bavage,  77  Maine,  212.  —  Ed. 


56  HOKNER   V.   COFFEY. 

In  regard  to  the  first  position,  the  suit  was  in  this  instance  against 
the  corporation.  Tlie  record  shows  no  other  defendant.  Hence,  if  the 
inhabitants  were  parties  to  the  suit,  they  became  such  b}-  operation  of 
law.  Before  the  law  will  make,  or  even  presume  a  man  to  be  a  defend- 
ant to  a  suit  against  another,  he  must  be  shown  to  have  been  a  part}-  to 
the  cause  of  action  upon  wliich  it  is  founded.  Were  the  inhabitants  of 
the  town  of  Grand  Gulf  parties  to  the  cause  of  action  in  this  instance  ? 
and  if  so,  was  it  their  own  act,  or  that  of  the  corporation,  that  made 
tliem  such?  If  of  the  corporation,  had  it  power  to  perform  the  act? 
The  tenth  section  of  the  charter  already  noticed  furnishes  a  conclusive 
answer  to  these  several  inquiries.  It  prescribes  the  manner  in  which, 
-'^^--S5L>_^and  tlie  extent  to  which  the  corporation  must  act  and  ma}'  go  in  this 
'tXjv-r-s»  respect.  The  statute  prescribing  the  mode  in  which  an  act  must  be 
MVvN,o.*.*.-St[7Grformed,  is  a  negative  upon  all  other  modes  for  performing  it. 
os>!:^jt.  '^^lience  it  is  manifest  that  the  inhabitants  of  the  town  were  not  parties 
Y^*'-'^'"^^    to  the  cause  of  action.     They  could  not,  therefore,  be  parties  to  the 


suit,  for  the  plain  reason  that  they  had  violated  no  Icgaldutyl!  A  suit 
-  "Y^  IS  but  a  remedy  given  by  law  to  enable  a  part}'  who  has  been  injured  by 
^''^"^^the  act  or  violation  of  duty  by  another,  to  recover  damages  equal  to  the 
injury  or  loss  sustained.  If  the  duty  never  existed,  it  could  not  be  vio- 
lated ;  and  without  both  its  existence  and  violation,  there  was  no  ground 
for  a  suit  against  the  inhabitants  of  the  corporation. 

But  there  is  still  another  light  in  which  this  question  may  be  pre- 
sented. If  the  doctrine  be  true,  that  the  inhabitants  of  an  incorporated 
town  are  by  operation  of  law  parties  to  all  suits  by  or  against  such 
corporation,  then  it  follows,  that  however  just  his  claim  may  be,  an 
inhabitant  could  not,  under  any  circumstances,  either  maintain  a  suit  or 
enforce  a  judgment  against  the  corporation.  The  moment  he  appears 
as  a  plaintiff  on  the  record,  the  law  makes  him  a  defendant  jointly  with 
the  corporation  in  the  same  action.  And  if  he  should  be  so  fortunate 
as  to  escape  a  plea  in  abatement,  or  a  demurrer,  if  the  fact  appeared  of 
record,  and  obtain  his  judgment,  his  own  property  would  be  as  much 
liable  as  that  of  any  other  inhabitant,  to  satisfy  the  execution.  This 
shows  to  what  the  doctrine  must  lead,  and,  consequently,  its  utter 
al)surdity. 

We  will  now  proceed  to  consider  the  second  question  stated  in  Angell 
and  Ames,  in  this  language,  to  wit:  "  If  a  power  to  sue  the  corpora- 
tion is  given  by  statute,  each  inhabitant  is  liable  to  satisfy  the  judg- 
ment." This  doctrine,  in  certain  cases,  is  unquestionably  correct ;  but 
it  has  no  application  to  a  corporation  like  that  of  the  town  of  Grand  Gulf, 
Lsjl.  (y-«  or  the  city  of  Bridgeport,  spoken  of  in  BeorcMe;/  v.  Smith.     The  rule  is 

1 1lls  ;  that  whenever  either  the  common  law^  or  a  statute  requires  the 
^  .  iiilial)itants  of  a  particular  district  of  country,  such  as  a  county  town 
^^"^-y^-*"*^  or  hundred  in  England,  to  perform  certain  duties,  and  they  fail  in  this^ 
J^\^  j  respect,  in  consequence  of  which  a  statute  authorizes  a  suit  by  the  party 
t„<jjj^'^  [jujured  against  the  inhabitants,  then  the  judgment  in  such  case  may  be 
.JX/^''^    vliolly  satisfied  out  of  the  property  of  any  one  of  said  inhabitants.    This 


HOKNER    V.   COFFEY. 


57 


is  all  according  to  rea^n  and  the  principles  of  the  common  law.  The 
duty  required  was,  in  the  first  instance,  ^oJOJ  and  several.  Everj'  iii- 
habitant~was  bound  to  aid  in  its  performance!  All  wereimplicated  in 
its  violation,  which  occasioned  the  suit.  The  judgment,  in  being  also 
joint  and  several,  only  partook  of  the  nature  of  the  cause  of  action  upon 
whicli  it  was  founded.  This  was  the  operation  of  judgments  recovered 
under  the  statute  of  Winton,  till  its  amendment  by  the  act  of  43d  Eliza- 
beth, which  required  such  judgments  to  be  satisfied  by  a  tax  levied 
equall}-  upon  the  inhabitants  of  the  hundred.  ^^vvsjfc^-5J53sj 

Here,  as  we  humbly  conceive,  lies  the  error  into  -which  these  Icarne^  ^^*^^VV-  ^^ 

tribunals  have  fallen,  in  not  properly  discriminating  between  a  dutv.  in)-N.vii T.'^ 

the  performance  of  which  thp  1n.w  regnii-pH  pvpry  man  in  the  particular\  ^^  A*a4 


district  to  aid,  and  for  a  breach  of  whi^h  P^  ^f"^?  ]ifV^^P1  ^"d  a.  rnpfP.  i't^'^^wV 
power  delegated  to  a  corporation  for  certain  specified  purposes^ 

The  charter,  in  this  instance,  onl}'  requires  the  inhabitants  of  the  town 
to  perform  such  obligations  as  the  corporate  autborilies  may  legally  im- 
pose upon  them.  The  onl3-  obligation  which  could  be  thus  imposed,  is 
the  tax  provided  for  in  the  tenth  section.  A  failure  to  impose  this  tax, 
or  a  failure  to  pay  it  by  the  inhabitants,  does  not  make  them  liable  to  a 
judgment  against  the  corporation,  for  the  plain  reason  that  it  consti- 
tuted no  cause  of  action  in  the  first  instance.  A  judgment  is  only  the 
means  provided  by  law  to  enable  the  creditor  to  get  that  to  which  he_ 
was  entitled  before  judgment.  A  creditor  could  not  maintain  a  suit 
against  any  or  all  of  the  inhabitants,  merely  because  they  were  liable  to 
'pa}'  a  certain  tax,  and  had  Fniled  to  pay  it  Upon  what  principle,  then, 
can  he  resort  to  their  property,  for  the  purpose  of  discharging  a  judgment 
against  the  corporation,  to  which  thej'  are  not  parties,  and  against  whom 
a  recovery  could  not  have  been  had,  even  if  thej'  had  been  parties? 

But  it  is  said,  that  the  corporation  exercised  a  portion  of  the  govern- 
ing power  of  tlie  State,  and,  therefore,  could  exercise  its  discretion  in 
creating  liabilities  against  the  inhabitants  of  the  town.  It  is  true,  that 
the  corporation  is  invested  with  a  subordinate  political  power,  but  it  is 
only  such  as  is  expressl}'  granted  by  the  charter 

To  this  extent  the  inhabitants  of  the  town  only  agreed  to  submit  to 
the  jurisdiction  of  the  corporation,  and  the  additional  burdens  which  it 
might  impose.  Thus  acting,  it  is  the  creature  of  law,  and  can  never 
oppress  those  under  its  jurisdiction.  Without  this  restraint  its  power 
is  arbitrary  and  despotic,  and  may  be  used  by  the  corporate  authorities 
for  their  own  selfish  purposes 

The  whole  case  must  at  last  turn  upon  the  question,  whether  the  cor- 
poration in  its  action  must  be  confined  strictly  to  the  grants  contained 
in  the  charter,  or  whether  it  may  exercise  an  unlimited  authority  over 
the  inhabitants  of  the  town.  If  we  adhere  to  the  first  position,  the  case 
for  the  appellant  cannot  even  he  made  plausible  under  the  charter.  The 
corporation  possessed  no  authority  to  make  the  people  of  the  town  par- 
ties to  the  cause  of  action,  or  to  the  suit,  or  to  make  their  property 
Uable  to  the  judgment,  except  in  the  shape  of  a  tax. 


5r\' 


'r^ 


I 


<r% 


58  SUTERVISORS   OF   ROCK   ISLAND   V.   U.   S.    STATE   BANK. 

It  makes  no  difference,  that  the  appellee  is  one  of  the  selectmen.  He 
is  only  one  of  seven,  and  could  not  alone  either  levy  or  enforce  a  tax 
under  the  charter.  If  he  has  failed  to  perform  his  dut3'  as  a  corporg.^^ 
tor,  the  law  gives  a  remedy  against  him  as  well  as  the  others  by  man- 
ddmus.  to  compel  them  to  levy  the  tax  named.  He  can  onl}'  be  known 
in  the  present  controversy  as  an  individual,  and  his  rights  as  such 
determined. 

There  is  no  judgment  in  the  record  from  which  an  appeal  could  be 
prosecuted.     The  case  will,  therefore,  be  dismissed. 


SUPERVISORS   OF   ROCK   ISLAND   v.    U.    S.   ex  rel.   STATE 
t).*...*^  ,  .-^         BANK. 


.  — 866.     4  Wallace  (U.  S.),'l35.i 

>-^  vjvr-odL  Error  to  U.  S.  Circuit  Court  for  Northern  District  of  Illinois. 
■  %?^^  »  A  statute  of  Illinois,  of  February  16,  1863,  enacts  as  follows : 
^    ^^  "  The  board  of  supervisors  under  township  organization,  in  such  coun- 

•^iv- V-dv-  ties  as  may  be  owing  debts  which  their  current  revenue,  under  existing 
^"^^^^r-^^laws,  is  not  sufficient  to  pay,  maiu  if  deemed  advisabl£,  levy  a  special  tax, 
;  tx '^■•s>.*:a:jiot  to  exceed  in  any  one  yeav  one  per  cent,  upon  the  taxable  property 
/X.  C>&^AAJSJ^^  ^"y  such  count}',  to  be  assessed  and  collected  in  the  same  manner 
""~*     •  mid  at  the  same  time  and  rate  of  compensation  as  other  county  taxes, 

r\  and  when  collected  to  be  kept  as  a  separate  fund,  in  the  count}'  treas- 

^^y j|^  V  ury,  and  to  be  expended  under  the  direction  of  the  said  county  court  or 
X^^^a^jT^  board  of  supervisors,  as  the  case  may  be,  in  liquidation  of  such  in- 
,^v>vjv>-^      debtedness." 

*-*-^!»**y  At  March  Term,  1863,  the  relators  recovered  judgment  against  the 

^  ifeAyL,     County  of  Rock  Island  upon  certain  overdue  coupons.     Nothing  was 

paid  upon  the  judgment,  and  there  was  no  mone}-  in  the  county  treasury 

which  could  be  so  applied. 

The  relator  subsequentlj-  requested   the  supervisors  to  collect  the 
;X  TCvA-rv..  —requisite  amount  by  taxation,  and  to  give  him  an  order  on  the  county 
a^-o  <^      treasury  for  payment.     They  declined  to  do  either. 
^-•--*>-*o-x       He  then  applied  to  the  court  below  for  a  mandamus,  compelling  the 
^'^-N. .  supervisors,  at  their  next  regular  meeting,  to  levy  a  tax  of  sufficient 

■^^^  ^i/O^ amount  to  be  a[)plied  to  pay  the  judgment,  interest,  and  costs,  and 
N**^-^*^'^  when  collected  to  apply  it  accordingly.  An  alternative  writ  was 
^■^^^:7^^^;issucd. 

^-*^*-  The  supervisors  made  a  return,  averring,  inter  alia^  that  they  had 

*-^-i<  »^  levied  and  collected  the  regular  county  taxes,  and  that  the  same  had 
^^/stJ^jJ^  all  been  needed  and  used  for  the  ordinary  current  expenses  of  the 
V    ""  county. 

^  Statement  abridged.    Arguments  omitted.  —  Ed. 


SUPEEVISORS    OF    ROCK    ISLAND   V.   U.    S.    STATE    BANK.  59 

The  court  below  disallowed  the  return,  and  ordered  that  a  peremp- 
tor}'  writ  should  issue,  commanding  the  respondents,  at  their  next  meet- 
ing for  levying  taxes,  to  levy  a  tax  of  not  more  tlian  one  hundred  cents 
on  each  one  hundred  dollars'  worth  of  taxable  property  in  the  count}-, 
but  of  sufficient  amount  fully  to  pay  the  judgment,  interest,  and  costs  ; 
and  that  they  set  the  same  apart  as  a  special  fund  for  that  purpose  ; 
and  that  they  pay  it  over  without  unnecessary  delay  to  the  relator. 

Cook,  for  the  plaintiffs  in  error. 

James  Grants  contra. 

SwATNE,  J.  [After  overruling  other  objections,  and  after  quotingv^^_^^„.^j„-«^ 
the  statute  of  Feb.  16,  1863.]  The  counsel  for  the  respondent  insists,  ,^^;er»-5L>^.>--S 
with  zeal  and  abiUtj-,  that  the  authoritj^  thus  given  involves  no  duty  ;yjcsic.  ."v^v-, 
that  it  depends  for  its  exercise  wholly  upon  the  judgment  of  the  super- ->.-~jo  A^-j^Cs 
visors,  and  that  judicial  action  cannot  control  the  discretion  with  which^*-'^*''''^  i 
the  statute  has  clothed  them.  We  cannot  concur  in  this  view  of  theVi^-^'Vo  < 
subject.  Great  stress  is  laid  by  the  learned  counsel  upon  the  languasfe^^^'^^''^'''^'  / 
'^  may,  if  deemed  advisable  "  which  accompanies  the  grant  of  power,  T^^^^^^^^ 


and,  as  he  contends,  qualifies  it  to  the  extent  assumed  in  his  argument.  c>.^^>.-v  ^ja-> 


In  The  King  v.   The  Inhabitants  of  Derby,^  there  was  an  indict 
raent  against  "  divers  inhabitants "  for  refusing  to  meet  and  make  a 
rate  to  pay  "the  constables'  tax."     The  defendants  moved  to  quash 
the  indictment,  "  because  they  are   not  compellable,  but  the  statute 
only  says  that  they  may,  so  that  they  have  their  election,  and  no  coer*-*,^^     -^ 
cion  shall  be."     The  court  held  that  "mai^^  in_tbe  case  of  a  public^-'       "^  "" 
officer,  is  tantamount  to  shqlj,  and  if  he  does  not  do  it,  he  shall  be  pun- 1  ^^^^^'^-^-^ 
ished  upon  an  information,  and  though  he  may  bo  commanded  b}'  a 
writ,  this  is  but  an  aggravation  of  his  contempt." 

In  The  King  and  Qiceen  v.  Barlow,'^  there  was  an  indictment  upon 
the  same  statute,  and  the  same  objection  was  taken.     The  court  said : 
"  When  a  statute  directs  the  doing  of^  thing  for  the  sake  of  justice  or). 
thrpiiblid  ^uua,  tlJ«  wora  ;;my  fiJ'tTiryamcTs  ffirw^Tcl  sliaUj  i^sif^  I 
H6n.  VI,  says  the  saeriff  7nay  take'  bail.     T^is'is  construed  he  shall, 
for  he  is  compellable  to  do  so." 

These  are  the  earliest  and  the  leading  cases  upon  the  subject.  They 
have  been  followed  in  numerous  English  and  American  adjudications. 
The  rule  they  lay  down  is  the  settled  law  of  both  countries. 

In  The  Mayor  of  the  City  of  New  York  ^  and  in  Mason  v.  Fearson^ 
the  words  "  it  shall  be  lawful"  were  held  also  to  be  mandator}'.^ 

The  conclusion  to  be  deduced  from  the  authorities  is,  that  where. 
power  is  given  to  public  officers,  in  the  language  of  the  act  before  ua^ 

1  Skinner,  370.  2  o  Salkeld,  609.  3  3  Hill,  614.  <  9  Howard,  248. 

6  See  The  Attorney-General  v.  Locke,  3  Atkyns,  164  ;  Blackwell's  case,  1  Vernon, 
152;  Dwarris  on  Stat.  712;  Malcom  y.  Rogers,  5  Cowen,  188;  Newburg  Turnpike 
Co.  V.  Miller,  5  Johnson's  Chancery,  113;  Justices  of  Clark  County  Court  v.  The  P.  & 
W.  &  K.  R.  T.  Co.,  11  B.  Monroe,  143;  Minner  et  al.  v.  The  Merchants'  Bank,  1 
Peters,  64 ;  Com.  v.  Johnson,  2  Binney,  275 ;  Virginia  v.  The  Justices,  2  Virginia 
Cases,  9 ;  Ohio  ex  rel.  v.  The  Governor,  5  Ohio  State,  53 ;  Coy  v.  The  City  Council  of 
Lyons,  17  Iowa,  1. 


60 


VON    HOFFMAN   V.    CITY    OF   QUINCY. 


N»-aV>AAr&i> 


>^>4^  'K^iA^OT  in  equivalent  language  —  whenever  the  public  interest  or  individual 
*^*"*^*'^  i  rights  call  for  its  exercise  —  me  language  used,  though  permissive~nr 
'^^"*-*^^-^/\form,  is  in  fact  peremptory.  What  they  are  empowered  to  do  for  a 
third  person  the  la^;;  pgnirpg  gVinli  be  done.  The  power  is  given,  not 
"or  their  benefit,  but  for  his.  It  is  placed  with  the  depositary  to  meet 
(JlAi^S^the  demands  of  right,  and  to  prevent  a  failure  of  justice.  It  is  given 
>-€l2<.^  as  a  remed}-  to  those  entitled  to  invoke  its  aid,  and  who  would  other- 
:i^:2x.5:^I!I~^ise  be  remediless. 

i^-  ■  '  r  In  all  such  cases  it  is  held  that  the  intent  of  the  legislature,  which  is 
^^"^^T^]^^;;!^ ^the  test,  was  not  to  devolve  a  mere  discretion,  but  to  impose  "•  n.  po!-;]- 
^t::*^^^—^  ,  ttive  and  absolute  dutj-." 

The  line  which  separates  this  class  of  cases  from  those  which  involve 
the  exercise  of  a  discretion,  judicial  in  its  nature,  which  courts  cannot 
control,  is  too  obvious  to  require  remark.  This  case  clearly  does  not 
fall  within  the  latter  category.^ 

The  Circuit  Court  properly  awarded  a  peremptor}^  writ  of  mandamus. 
We  find  no  error  in  the  record.     The  judgment  below  is 

Affirmed. 


'vt    {%^  ^-3-'^ 


<5^i-ekJv^vj^_^   ^    Vxr^^-s_i^-^ 


VON  HOFFMAN  v.  CITY  OF  QUINCY. 

"§C£i>^.^  1866.     4  Wallace,  53.5.2 

Error  to  U.  S.  Circuit  Court  for  Southern  District  of  Illinois. 

Petition  for  mandamns. 
The  relator  was  the  owner  of  overdue  coupons,  which,  when  issued, 
were  attached  to  bonds  issued  b}^  the  city  in  payment  for  railroad 
stock,  subscribed  for  by  the  city  under  certain  statutes,  passed  in  1851, 
1853,  and  1857. 

JBy  the  provisions  of  these  several  acts  the  city  was  authorized  to 
ollect  a  special  annual  tax  upon  the  property^  real  and  personal^ 
therein,  sufficient  to  pay  the  annual  interest  upon  any  bonds  there- 
after issued  by  the  city  for  railroad  purposes,  pursuant  to  law.  It 
was  required  that  the  tax,  when  collected,  should  be  set  aside,  and 
held  separate  from  the  other  portions  of  the  city  revenue,  as  a  fund 
^~-^<^>^jv- specially  pledged  for  the  payment  of  the  annual  interest  upon  the 
*^-^^^\^j.^v^.  bonds  aforesaid.  It  was  to  be  applied  to  this  purpose,  from  time 
^-^-A- -w-^A: to  time,  as  the  interest  should  become  due,  "and  to  no  other  purpose 
■"-^  *-'^-^~f*r>^Ji4chatsoever." 

'=*--\^  "^^^       The  city  failed  to  pay  the  coupons  held  by  the  relator  for  a  long 
-  time  after  they  became  due,  and  refused  to  levy  the  tax  necessary  for 


1  The  reople  v.  Sup.  Court,  5  Wendell,  125;  The  People  v.  Sup.  Court,  10 
Wendell,  289;  The  People  v.  "Vermilyea,  7  Cowen,  393;  Hull  v.  Supervisors,  19 
John,  260. 

2  Statement  abridged.  Arguments  omitted.  Only  part  of  the  opinion  is  given. 
-Ed. 


>-«£Ua>Sx-_,    ^eo     |^-<J-VA.^   .     ^b^t^r^_^-«.    Oil    \>-<i-A.^ 


-vx^ 


VON    HOFFiVIAN   V.    CITY   OF   QUINCY.  61 

that  purpose.  The  relator  sued  the  city  upon  them  in  the  court  below 
and  at  the  June  Term,  1863,  recovered  a  judgment  for  ^22,206.69 
and  costs.  An  execution  was  issued  and  returned  unsatisfied.  The 
judgment  was  unpaid.  The  cit}'  still  neglected  and  refused  to  lev}' 
the  requisite  tax.  He  therefore  prayed  that  a  writ  of  numdamiis  be 
issued,  commanding  the  city  and  its  proper  officers  to  pay  over  to  him 
an}-  mone}-  in  their  hands  otherwise  unappropriated,  not  exceeding  the 
amount  of  the  judgment,  interest,  and  costs  ;  and,  for  want  of  such 
funds,  commanding  them  to  levy  the  special  tax  as  required  b}'  the  acts 
of  the  legislature  before  referred  to,  sufficient  to  satisfy  the  judgment, 
interest,  and  costs,  and  to  pa}'  over  to  him  the  proceeds. 

The  city  filed  an  answer  relying  on  the  act  of  Feb.  14,  1863,  which 
contains  the  following  provisions  : 

"  Section  4.     The  cit}-  council  of  said  city  shall  have  power  to  levy  ^..^-yj^*-^ 
and  collect  annually  taxes  on  real  and  personal  property  within  the  ^«- 

limits  of  said  city  as  follows:  [After  providing  for  taxation  for  certain  ■''^•^£^ 
special   purposes:]      On  all   real   and   personal    property  within  the^g.^^^.^,^    -m*^ 
limits  of  said  city,  to  pay  the  debts  and  meet  the  general  expenses  of    ..^-»^']) 
said  cit}',  not  exceeding  fifty  cents   on  each  one  hundred  dollars  per 
annum  on  the  annual  assessed  value  thereof. 

"  Section  5.  All  laws  and  parts  of  laws,  other  than  the  provisions 
hereof,  touching  the  levy  or  collection  of  taxes  on  propert}'  within  said 
city,  except  those  regulating  such  collection,  and  all  laws  conflicting 
herewith  are  hereb}'  repealed  ;     .     .     ." 

The  answer  averred  that  the  full  amount  of  the  tax  authorized 
b}'  this  act  had  been  assessed,  and  was  in  the  process  of  collection  ; 
that  the  power  of  the  city  in  this  respect  has  been  exhausted:  "  and 
that  the  said  fift}'  cents  on  the  one  hundred  dollars,  when  collected, 
will  not  be  sufficient  to  pa}'  the  current  expenses  of  the  city  for  the 
year  1864,  and  the  debts  of  the  said  city." 

The  relator  demurred  to  the  answer,  and  judgment  was  given  against 
him. 

McKinnon  and  Merrick,  for  plaintiff  in  error. 

Cushing  and  Ewing,  Jr.,  contra. 

S WAYNE  J.  .  .  .  The  Constitution  of  the  United  States  declares 
(Art.  I.  s.  10),  that  "  no  State  shall  pass  any  bill  of  attainder,  ex 
l)08t  facto  law,  or  law  impairing  the  obligation  of  contracts." 

........  p 

It  is  also  settled  that  the  laws  which  subsist  at  the  time  and  place  of  r-"***-*^  ^*^ 
the^  making  of  a  contract,  and  where  it  is  to  be  performed,  enter  intQ^r '^  '^-o.-vX 
and  form  a  part  of  it,  as  if  they  were  expressly  referred  to  or  incorpo^  \ ^-'*»~"«'~*='^-e- 
1'ated  in  its  terms^     This  principle  embraces  alike  those  which  affect  its -^ 
validity,  construction,   discharge,  and  enforcement.      Illustrations  of 
this  proposition    are  found,    in  the  obligation  of  the  debtor   to    pay 
interest  after  the  maturity  of  the  debt,  where  the  contract  is  silent ;  in 
the  liability  of  the  drawer  of  a  protested   bill  to  pay  exchange  and 
damages,  and  in  the  right  of  the  drawer  and  indorser  to  require  proof 


62  VON    HOFFMAN   V.   CITY   OF   QUINCY. 

of  demand  and  notice.     These  are  as  much  incidents  and  conditions  of 
the  contract  as  if  they  rested  upon  the  basis  of  a  distinct  agreement.^ 

Nothino;  can  be  more  material  to  the  obligation  than  the  means  of 
enforcement.  Without  the  remedy  the  contract  may,  indeed,  in  the 
sense  of  the  law,  be  said  not  to  exist,  and  its  obligation  to  fall  within 
the  class  of  those  moral  and  social  duties  which  depend  for  their  fulfil- 
ment wholly  upon  the  will  of  the  individual.  The  ideas  of  validity  and 
remedy  are  inseparable,  and  both  are  parts  of  the  nh]igni.ion,  whinh  is 
guaranteed  by  the  Constitution  against  invasion. 

It  is  competent  for  the  States  to  change  the  form  of  the  remedy,  or 
to  modify  it  otherwise,  as  they  may  see  fit,  provided  no  substantial 
right  secured  b}'  the  contract  is  thereby  impaired.  No  attempt  has 
been  made  to  fix  definitel}'  the  line  between  alterations  of  the  remedy, 
which  are  to  be  deemed  legitimate,  and  those  which,  under  the  form  of 
modifying  the  remedy,  impair  substantial  rights.  Every  case  must  be 
determined  upon  its  own  circumstances.  Whenever  the  result  last 
mentioned  is  produced  the  act  is  within  the  prohibition  of  the  Consti- 
tution, and  to  that  extent  void.^ 

If  these  doctrines  were  res  mtegroe  the  consistenc}-  and  soundness  of 
the  reasoning  which  maintains  a  distinction  between  the  contract  and 
the  remed}'  —  or,  to  speak  more  accurately',  between  the  remedy  and 
the  other  parts  of  the  contract  —  might  perhaps  well  be  doubted.^  But 
thej'  rest  in  this  court  upon  a  foundation  of  authority  too  firm  to  be 
shaken  ;  and  the}'  are  supported  by  such  an  arra}'  of  judicial  names 
that  it  is  hard  for  the  mind  not  to  feel  constrained  to  believe  the}'  are 
correct.  The  doctrine  upon  the  subject  established  b}-  the  latest  ad- 
judications of  this  court  render  the  distinction  one  rather  of  form  than 
substance. 

When  the  bonds  in  question  were  issued  there  were  laws  in  force 
which  authorized  and  required  the  collection  of  taxes  sufficient  in 
amount  to  meet  the  interest,  as  it  accrued  from  time  to  time,  upon  the 
^rvUre  debt.  But  for  the  act  of  the  14th  of  February,  1803,  there 
would  be  no  drfficulty  in  enforcing  them^  J'hp  an^onnt  permitted  to  be 
collected  by  that  act  will  be  insufficient ;  and  it  is  not  certain  that  an}'- 
thing  will  be  yielded  applicable  to  that  object.  To  the  extent  of  the, 
dpfipimipy  thp  obligation  of  the  contract  will  be  impaired,  and  ii  mere 
b^_LiDtliii3cr  npplicable.  it  may  be  regarded  as  annullecC  A  right  with- 
out a  remedy  is  as  if  it  were  not.  For  every  beneficial  purpose  it  may 
be  said  not  to  exist. 

1  Green  i-.  Biddle,  8  Wheaton,  92;  Bronson  v.  Kinzie,  1  Howard,  319;  McCracken 
w.  Hayward,  2  Id.  612;  People  v.  Bond,  10  California,  570;  Ogden  i'.  Saunders,  12 
Wheaton,  231. 

2  Bronson  v.  Kinzie,  1  Howard,  311  ;  McCracken  ru  Hayward,  2  Id.  608. 

3  1  Kent's  Commentaries,  456  ;  Sedgwick  on  Stat,  and  Cons.  Law,  652 ;  Mr 
Justice  Washington's  dissenting  opinion  in  Mason  v.  Haile,  12  Wheaton,  379. 


/W.I 


tSi^y 


CICT  OF  NEW   ORLeXnS, 


n::: 


f  ffARCHAND 

It  is  well  settled  that  a  State  ma}^  disable  itself  by  contract  from  ex- 
ercising its  taxing  power  in   particular  cases. ^      It  is    equalh'  clear  ^ 
that  where  a  State  has  autliori/.er]  a  tniinicipnl   corporation  to  contract\^"^_^ " 
and  to  exercise  the  [)ower  of  local  taxation  to  the  extent  necessary  toV  ^^**-*-" 


meet  its  engagements,  the  power  thus  trjven  cannot  be  withdrawn  until  .Lj^   •     '*^ " 

the  contract  is  satisticd.  ^^-.-        .  ^,_  _  -n 

are  equally  bound.     TTie  po 

cannot  annul,  and  which  the  donee  is  bound  to  execute  ;  and  neither 

the  State  nor  the  corporation   can  any  more  impair  the  obligation  of 

the  contract  in  this  way  than  in  any  other. ^ 

The  laws  requiring  taxes  to  the  requisite  amount  to  be  collected,  in 
force  when  the  bonds  were  issued,  are  still  in  force  for  all  the  purposes 


ilie  t^tate  and  the  corporation,  in  sucn  cases,  \        j^^"^^^ 
jower  given  becomes  a  trust  which  the  donor  M,  ^^vv 


of  tills  case.  The  act  of  1863  is,  so  far  as  it  affects  these  bonds,  a 
nullity.  It  is  the  dut}'  of  the  city  to  impose  and  collect  the  taxes  in 
all  respects  as  if  that  act  had  not  been  passed.  A  different  result 
would  leave  nothing  of  the  contract,  but  an  abstract  right  —  of  no 
practical  value  —  and  render  the  protection  of  the  Constitution  aj 
shadow  and  a  delusion.  ' 

The  Circuit  Court  erred  in   overruling  the   application  for  a  manda- 
mus.    The  judgment  of  that  court  is  reversed,  and  the  cause  will  be  __ 
remanded,  with  instructions  to  proceed  -^o\    '«q3--G^-'^-^v---., 

In  conformity  with  this  opinio7i. 


STATE    EX    REL. 


MARCHAND 


c_*iCA-<. 


,<y>^tXfcj 


CITY  OF  NEW  ORLEANS.  N'S'^  ^  ^  -^ 

1885.     37  Louisiana  Annual,  13.3      >^o-&-*^^>''v^>*^.'-«r  .     ^-^  .  Q^*.--: 

Appeal  from  the  Civil  District  Court  for  the  Parish  of  Orleans- x>j::.>     ^:<y^ 
Monroe.,  J. 


Blanc  and  Butler.,  for  the  relators  and  appellees. 

C  F.  Buck,  City  Attorney,  contra. 

Fenner,  J.  In  1872,  the  Legi.slature  of  the  State  passed  Act  No. 
60  of  that  year,  by  which  it  established  the  Luzenberg  Hospital  in  this  ^>wSlJ^  , 
city  as  the  exclusive  hospital  for  small-pox  and  further  provided  that  ^^^^^ 
*'  all  indigent  cases  of  small-pox,  or  other  diseases  reported  contagious,  ^^'**t!^'^  *^ 
in  want  of  or  making  application  for  hospital  aid  or  care,  shall  be  sent  ^^"^^^.  *^^ 
to  the  hospital  designated  in  this  act,  at  the  expense  of  the  city  of  NewV  .  '-^ 

Orleans,  as  usual  and  at  the  usual  ^^er  diem."  \>-<^-**-^' 

Acting  under  this  direction,  the  city  entered  into  a  contract  with  Dr.  "**-^^^^^-*\j- 
Anfoux  then  in  charge  of  said  hospital  by  which  he  was  to  receive  and  '^^'^-n^"-^  ' 
treat  such  patients  at  a  stipulated  compensation  of  thirty-five  dollars ?'^'~"*-^      c 


166 


Dodge  V.  Woolsey,  18  Howard,  331]" 


A 


irrr 


^  New  Jersey  v.   Wilson,   7  Cranch 
Piqua  Branch  v.  Knoop,  16  Id.  331. 

2  People  V.  Bell,  10  California,  570;  Dominic  v.  Sayre,  3  Sandford,  555. 
•  Arguments  omitted.  —  Ed.     ■\X>-si>.»    --x-vr^jOw-mJ^     5lJLk>-m.     <3t_ 


A-»kX:t:A 


64  MAECHAND  V.   CITY   OF   NEW   ORLEANS. 

per  case.  During  the  5'ear  1873  he  received  and  treated  a  large  num- 
ber of  cases,  for  which  the  amount  due  by  the  city  under  the  contract 
was  $19,670. 

In  1878  suit  was  brought  and  judgment  recovered  against  the  city 
on  the  foregoing  cause  of  action  and  for  the  amount  above  stated,  with 
interest  and  costs. 

The  judgment  thus  rendered  was  dulj'  registered  July  5th,  1878,  pur- 
suant to  the  provisions  of  Act  No.  5,  of  1870.  This  registration  has 
produced  no  results ;  the  judgment  has  not  been  paid  ;  and  the  evi- 
dence makes  it  manifest  that  under  the  city's  construction  of  its 
duties  under  the  Act  No.  5,  and  under  its  modes  of  execution  thereof, 
man}'  years  must  elapse  before  any  payment  will  be  made  upon  this 
judgment. 

The  reason  wh}'  this  debt  remains,  and  promises  to  remain,  unpaid, 
is  that  the  city  construes  her  power  and  dut}*  of  taxation  to  be  gov- 
erned and  limited  b}^  the  provision  of  the  Constitution  of  1879  to  a  tax 
of  ten  mills  on  the  dollar,  in  so  far  as  provision  for  such  judgments  is 
concerned,  and  that  the  requirements  for  her  alimou}'  leave,  out  of  the 
receipts  from  this  tax,  nothing  or  little  to  be  appropriated  to  the  satis- 
faction of  judgments. 

To  this  the  creditor  answers  that  he  is  a  creditor  b}'  contract ;  that, 
y  at  the  date  of  his  contract,  the  cit}'  possessed,  by  law,  a  power  of  tax- 

.■gitiou  for  "current  city  expenses  exclusive  of  interest  and  schools" 
onl}'  limited  to  one  and  one-quarter  joer  cent.;  that  quoad  this  contract 
obligation  and  so  far  as  necessar}'  for  its  satisfaction,  this  power  of  tax- 
ation still  exists  unaffected  by  subsequent  legislative  or  constitutional 
provisions  ;  that,  under  the  Act  No.  5  of  1870,  it  is  the  duty  of  the  city 
authorities  to  provide  for  the  payment  of  his  registered  judgment  by 
setting  apart  in  the  annual  budget  a  sum  for  that  purpose,  and  that,  in 
order  to  execute  this  duty,  the  correlative  dut}'  is  imposed  of  exercis- 
ing the  power  of  taxation  vested  in  the  city  by  law  to  the  extent  neces- 
sary to  raise  the  means  to  make  such  provision. 

In  pursuance  of  these  views,  the  present  suit  was  instituted  for  a 
mandamus  directing  the  city  authorities  to  execute  and  perform  the 
duties  imposed  by  the  Act  No.  5  of  1870;  and,  in  accordance  there- 
with, to  set  apart  in  the  next  annual  budget  sufficient  money  to  pay 
such  judgment ;  and  further  directing  them  to  provide  in  said  budget, 
by  taxation  for  current  cit}'  expenses,  in  excess  of  the  amount  allowed 
by  law  for  the  alimony  of  the  cit}'  but  not  in  excess  of  one  and  one- 
quarter  per  cent.,  the  means  of  revenue  necessary  to  pay  relator's  said 
judgment,  and  so  to  do,  in  all  succeeding  annual  budgets,  until  the 
same  be  paid. 

From  a  judgment  making  the  mandamus  peremptory,  the  city  has 
appealed. 

We  lay  down  the  following  propositions  of  fact  and  law  viz.  : 
\  I      1st.   The  judgment  was  founded  on  a  contract  entered  into  in  1872. 
j  I       2d.    At  the  date  of  the  contract,  the  city  possessed  a  power  of  taxa- 


MARCHAND   V.    CITY   OF   NEW    ORLEANS. 


65 


tion  for  general  expenses  "  exclusive  of  interest  and  schools,"  of  twelve 
and  one-half  xoxW?,  jyer  annum.     See  Act  No.  73  of  1872,  Sec.  15. 

3d.  Under  the  consistent  jurisprudence  of  the  Supreme  Court  of  tlie  o^^^  wi 
United  States  and  of  this  Court,  the  power  of  taxation  existing  at  tLic7}  o4>Jcrv^  'v-o 
date  of  the  contract  is  read  into  the  contract  and  coirtTTnics  to  exist,  so  ^0^^.-^^  trs.  . 
far  as  necessary  for  the  enforceroent  of  the  obligations  of  the  contract,  1  cJA>-yl,  00; 
"irrespective  of  any  subsequent  legislation  or  constitutional  onactinents  ■»  .1-, >A^*rvA>vN* 
restricting  the  power  of  taxatioiT  State  ex  rel.  Moore  vs.  Lit}',  '6)i  j  Ja^.  ^.i\.»-,o, 
Ann. ;  State  ex  rel.  Dillon  vs.  City,  34  Ann.  477  ;  State  ex  rel.  Carriere  ^^xJLIo-  (Tuo 
vs.  City,  36  Ann.  ;  Von  Hoffman  vs.  Quincy,  4  Wall.  535  ;  Wolff  vs.  ;k  ;^^^>Jaj 
New  Orleans,  103  U.  S.  358  ;  Nelson  vs.  St.  Martin,  111  U.  S.  720. 

4th.  This  Court  has  long  since  held  that  the  prohibitions  against 
the  issuance  of  the  writ  of  mandamus  against  officers  of  the  city  of 
New  Orleans  contained  in  Act  No.  5  of  1870,  apply  onl}-  to  the  cases 
therein  specially  designated  and  that,  for  the  performance  of  the  duties 
imposed  by  that  act  itself,  the  writ  of  mandamus  was  a  proper  remedy. 
State  ex  rel.  Carondelet  vs.  New  Orleans,  30  Ann.  129. 

5th.  In  the  same  case  it  was  held  that,  under  Act  No.  5  of  1870,  it 
is  the  "  plain  dutj- "  of  the  city  autliorities  "  to  provide  for  the  pny- 
mont  of  registered  judgments  in  the  onl}-  mode  in  which  judgment 
creditors  of  the  city  are  permitted  to  collect  their  judgments.  This 
requires  the  action  of  the  Mayor  and  Administrators,  in  their  aggre- 
gate capacity  as  a  municipal  government;  the  adoption  of  the  annual 
budget ;  the  lev}'  of  the  necessary  taxes  ;  and  a  setting  apart  of  a 
sufficient  amount  to  pay  this  and  other  registered  judgments.  *  * 
The  duty  of  the  cit}'  to  make  this  provision  is  not  discretionary  as  to 
time  or  manner.  .  The  law  imperatively  requires  that  it  shall  be  in  the 
next  annual  budget,  and  by  setting  apart,  appropriating  a  sufficient 
amount  out  of  the  annual  revenues."  State  ex  rel.  Carondelet  vs.  New 
Orleans,  30  Ann.  129. 

This  dut}',  we  have  held,  however,  is  subordinate  to  the  higher  and 
absolute  duty  of  first  providing,  out  of  the  revenues  applicable  to  that 
purpose,  for  the  necessary  alimony  or  support  of  the  city.  State  ex 
rel.  Moore  vs.  Citv ;  Saloy  vs.  City. 

6th.  In  the  DeLeon  case  we  held  that  the  duty  to  appropriate  and 
set  apart  money  in  the  annual  budget  for  particular  purposes  "  in- 
volved necessarily  the  duty  to  levy  such  tax  (within  the  power  of  tax- 
ation possessed,  at  the  time,  by  the  corporation)  as  will  render  possible 
the  performance  of  the  duty."  State  ex  rel.  DeLeon  vs.  City,  34  Ann., 
p.  477. 

7th.   The  relator  herein  claims  and  is  entitled  to  no  special  tax.     He^ 
is  simply  entitled  to  payment  out  of  the  revenues  arising  from  the  col-  \  , 
lection  of  taxes  provided  for  the  general  expenses  of  the  city.     He  \ 
simply  asks  that  the  power  of  taxation  conferred  by  law  for  that  pur-j 
pose  shall  be  exercised  to  the  extent  necessf.ry  to  furnish  the  means/ 
out  of  which  his  judgment  may  be  paid.  ^ 

So  far  as  relator's  contract  and  judgment  are  concerned,  we  have 

6 


66  MARCHAND   V.    CITY   OF   NEW   ORLEANS. 

^already  shown  that  the  city  possesses  a  power  of  taxation  for  general 
purposes  of  twelve  and  one-half  mills.  She  has,  heretofore,  exercised, 
and  proposes  hereafter  to  exercise  this  power  only  to  the  extent  of  te')*. 
mills  on  the  dollar,  and,  as  the  revenues  arising  from  this  tax  are 
applicable  to,  and  required  for,  the  necessary  alimony  of  the  city,  they 
leave,  as  we  have  said,  little  or  nothing,  which  can  be  appropriated  for 
the  payment  of  registered  judgments. 

From  the  foregoing  statement,  it  appears  that,  to  the  extent  neces- 
sary for  the  provision  for  payment  of  plaintiff's  judgment,  the  city  pos- 
sesses a  residuaiy  power  of  taxation  of  two  and  one-half  mills,  not 
exercised  and  which  she  refuses  to  exercise,  the  revenues  from  which 
would,  under  no  circumstances,  be  applicable  to  tne  city's  alimony,  or, 
indeed,  toany  other  purpose  than  that  of  satisfying  relator's  iudgmenl 
and  others  standing  in  like  case  with  it.  It  would  be,  indeed,  an 
anomaly,  if  the  cit}'  could  escape  from  or  postpone  her  clear  dut}',  to 
provide  for  the  satisfaction  of  such  judgments,  by  simply  abstaining 
from  the  exercise  of  lawful  powers  of  taxation  to  an  extent  necessar^^ 
to  provide  the  means  of  paying  them.  Such  an  anomaly  could  never 
be  sanctioned  by  any  court  of  justice,  since  it  would  render  the  pay- 
ment of  debts  no  longer  obligatory  upon  municipal  corporations,  but 
uependent  purely*  upon  their  will  and  caprice. 

From  the  foregoing  considerations  it  would  conclusivel}'  appear  that 
relators  are  entitled  to  the  relief  which  the}'  seek,  unless  there  is  some- 
thing in  the  nature  of  their  debt,  or  in  the  law  existing  at  the  date  of 
their  contract,  which  debars  it.  Legislation  subsequent  to  the  contract 
has,  and  can  have,  no  effect  upon  the  rights  and  obligations  arising 
from  the  contract. 

The  learned  counsel  for  t)ie  city  propounds  two  special  defenses 
based  upon  the  nature  of  plaintiff's  debt  and  the  law  in  existence  at 
the  date  of  the  contract. 

1st.  He  contends  that,  from  the  very  nature  and  constitution  of  mu- 
nicipal corporations,  they  are  incapable  of  creating  or  contracting  a 
debt  for  current  expenses,  in  excess  of  the  revenues  arising  from  taxa- 
tion, within  the  limitations  imposed  by  law,  for  the  year  in  which  the 
debt  was  created  ;  and  that  such  debt,  whether  created  by  contract  or 
not,  can  only  demand  satisfaction  out  of  the  revenues  of  that  3'ear. 

If  such  had  been  the  law  of  Louisiana,  as  applicable  to  the  city  of 
New  Orleans,  in  1873,  it  is  passing  strange  that,  in  1874,  it  should 
have  been  deemed  necessary  to  pass  a  constitutional  amendment  estab- 
lishing the  ver}'  principles  which,  it  is  contended,  already'  existed  and 
were  inherent  in  the  very  nature  of  the  corporation. 

We  have  rigidly  enforced  the  constitutional  amendment  of  1874,  as 
applicable  to  debts  created  after  its  passage.  Taxpaj'crs  vs.  New  Or- 
leans, 33  Ann.  568. 

But  when  we  are  asked  to  recognize  the  principles  established  by 
that  amendinent  as  existing  independent  of  it  and  prior  to  its  passage, 
and  as  applicable  to  debts  contracted  prior  thereto,  we  must  pause. 


MARCHAND   V.    CITY   OF   NEW    ORLEANS. 


67 


The  proposition  is  supported  by  no  authority  and  by  no  well  founded 
reason.  It  is  contradicted  by  the  entire  financial  administration  of  the 
cit}'  prior  to  1874,  by  the  uniform  current  of  judicial  interpretation 
which  has  constantly  rendered  and  enforced  judgments  upon  such  obli- 
gations witliout  restriction  to  the  revenues  of  particular  years,  and  by 
the  terms  and  spirit  of  the  Act  No.  5  of  1870  itself. 

For  what  would  be  the  sense  of  requiring  the  city  authorities  to  pro- 
vide in  coming  budgets  for  registered  judgments,  without  distinction, 
if  such  judgments  could  only  seek  satisfaction  out  of  the  revenues  of 
some  antecedent  year  in  which  the  debts  were  contracted?  We  dis- 
miss the  proposition  as  utterly  untenable. 

Nor  is  there  anything  in  the  nature  of  the  debt  which  prevents  this 
contract  from  being  protected  from  impairment  under  the  Constitution 
of  the  United  States.  The  protection  afforded  by  that  instrument  is 
not  restricted  to  bonds  or  any  particular  forms  of  contract.     It  covers 


all  contracts.  Every  lawful  contract  of  a  municipal  corporation  is  en- 
titled to  satisfaction  by  the  exercise  of  the  power  of  taxation  possessed 
by  the  corporation  at  its  date,  to  the  extent  necessary,  and  to  invoke 
the  continued  and  repeated  exercise  of  that  power  until  the  debt  is 
satisfied. 

Such  is  the  clear  and  unequivocal  doctrine  announced  by  the  Supreme 
Court  of  the  United  States  uniformlj-  and  specially  in  the  very  recent 
case  of  Nelson  vs.  St.  Martin,  111  U.  S.  716. 


We  are  not  called  upon  to  consider  the  rights  of  other  judgment 
creditors  whose  judgments  rank  that  of  relators  in  order  of  registry. 
The  record  does  not  advise  us  whether  their  judgments  are  based  on 
contracts  or  whether  they  rest  upon  causes  of  action  arising  prior  to 
the  constitutional  amendment  of  1874.  It  may  be  that  none  of  them 
can  compete  with  relators  in  the  rehef  sought.  But,  at  all  events,  the 
unexhausted  power  of  taxation  is  ample  to  satisfy  all ;  and  if  they  are 
entitled  to  like  rights  with  relators  and  have  neglected  to  exercise 
them,  there  is  no  reason  wh}'  relators  should  suffer. 

Let  it  be  well  understood  that  the  duty  to  levy  an  extra  tax  is  no^^ 
obligatory  under  this  decree.  The  city  may  satisfy  the  debt  out  of  its ' 
revenues  under  the  existing  rate  of  taxation.  But  the  insufficiency  of ' 
such  revenues  will  be  no  excuse  for  not  satisfying  the  judgment  and, 
if  necessary,  and  o/di/  if  necessary,  must  provision  be  made  by  a  tax 
for  general  exi)iinses  above  ten  mills  and  within  twelve  and  one-half  j 
mills. 

Judgment  aflarraed. 

Rehearing  refused. 

Bermudez,  C.  J.,  and  Poche,  J.,  take  no  part  in  this  opinion  and 
decree. 

-\- 


68 


EEES   V.   CITY    OF   WATEKTOWN. 


V.   CITY   OF   WATERTOWN. 

1873.     19  Wallace  (U.  S.),    107.1 


^.^, 


^-e^>^"d>.jj.  Appeal  from  the  Circuit  Court  for  the  Western  District  of  Wiscon- 
^>vvvj(^j^   sin  ;  the  case  being  thus  : 

'  Rees,  a  citizen  of  Illinois,  being  owner  of  certain  bonds  issued  under 
authority  of  an  act  of  the  legislature  of  the  State  of  Wisconsin,  b}'  the 
cit}'  of  Watertown,  in  that  State,  to  the  Watertown  and  Madison  Rail- 
road Compan}",  and  by  the  company  sold  for  its  beneflt,  brought  suit 
m  the  Circuit  Court  of  the  United  States  for  the  District  of  Wiscon- 
sin, against  the  city,  and,  in  18G7,  recovered  two  judgments  for  about 
$10,000. 

\fs<,^>jok>vyv^^^.^  I^^  ^'^®  summer  of  1868  he  issued  executions  upon  the  two  judgments 
o^  thus  obtained,  which  were  returned  whollj'  unsatisfied. 
"^i  \^  In  November  of  the  same  3'ear  he  procured  from  the  United  States 
'^SLds^y^;^,^_^  Circuit  Court  a  peremptory  writ  of  mandamus,  directing  the  city  of 
■^^«~— »>-Kdt  Watertown  to  lev}'  and  collect  a  tax  upon  the  taxable  propert}'  of  the 
■''■^'^-tt-A-  v.*v— city,  to  pay  the  said  judgments;  but  before  the  writ  could  be  served, 
*\j»-a.^<-j.  a  majorit}'  of  the  members  of  the  city  council  resigned  their  offices. 
'V'^ik-vwo  This    fact   was  returned   bj'  the   marshal,  and   proceedings  upon   the 

'Va  t<i -^i^^vji^^mandamus  thereupon  ceased. 

V  5l.^^^  In  May,  1869,  another  board  of  aldermen  having  been  elected,  Rees 
.  ^"o^procured  another  writ  of  mandamus  to  be  issued,  which  writ  was  served 

a  ^~A^^  on  all  of  the  aldermen  except  one  Holger,  who  was  sick  at  the  time  of 
\  '  v'*^  t^i*^  service  upon  the  others.  No  steps  were  taken  to  comply  with  the 
"^^■'*^'''^^-  requisition  of  the  writ.  An  order  to  show  cause  why  the  aldermen 
"T^  "^  ^"Tt*  shoukl  not  be  punished  for  contempt,  in  not  complying  with  its  re- 
^^^-^  quirements,  was  obtained,  and  before  its  return  day  six  of  the  alder- 

men resigned  their  offices,  leaving  in  office  but  one  more  than  a 
quorum,  of  whom  the  said  llolger,  upon  whom  the  writ  had  not  been 
served,  was  one.  Various  proceedings  were  had  and  various  excuses 
made,  tlie  wliole  resulting  in  an  order  that  the  aldermen  should  at  once 
levy  and  collect  tlie  tax  ;  but  before  the  order  could  be  served  on 
Holger,  lie  resigned  his  office,  and  again  the  board  was  left  without  a 
quorum.  Nothing  was  accomj)lishod  by  their  effort  in  aid  of  the  plain- 
tiff, but  fines  were  imposed  upon  the  recusant  aldermen,  which  were 
'"^  '*Y,c}jt     ordered  to  be  applied  in  discharge  of  the  costs  of  the  proceedings. 

In  October,  1870,  the  plaintiff  obtained  a  third  writ  of  mandamus, 
which  resulted  as  the  former  ones  had  done,  and  by  the  same  means, 
on  the  part  of  the  officers  of  the  city.  A  special  election  was  ordered 
to  be  held  to  fill  the  vacancies  of  the  aldermen  so  resigning,  but  no 
votes  were  cast,  except  three  in  one  ward,  and  the  person  for  whom 
the}^  were  cast  refused  to  qualify.  The  general  truth  of  these  facts 
was  not  denied.     No  part  of  the  debt  was  ever  paid. 


Vf^ 


""^^   \  ^"^(—•^^"Adl!  ''^''^''^"'^snt  abridged 


Arguiiieiit  and  ])art  of  uijiuiuii  omitted.  — Ed. 


c3— ^»..^ 


^       .  .     IV  ^ 


i 


REES   V.   CITY   OF  WATERTOWN.  69 

In  this  state  of  things,  the  district  of  Wisconsin  having  been  divided 
luto  an  eastern  and  a  western  district,  and  the  city  of  Watertown  being 
in  the  latter,  Rees  brought  suit  in  the  latter  district  on  his  judgments 
obtained  in  the  general  district  before  the  division,  and  got  a  new 
judgment  upon  them  for  $11,066. 

He  now  filed  a  bill  in  the  said  western  district,  setting  forth  the 
above  facts,  the  general  truth  of  which  was  not  denied  ;  that  the  debt 
due  to  him  had  never  been  paid,  and  that,  with  an  accumulation  of 
fourteen  3'ears'  interest,  the  same  remained  unpaid,  and  that  all  his 
efforts  to  obtain  satisfaction  of  his  judgments  had  failed.  All  this  was 
equally  undenied. 

The  bill  set  forth  also  certain  acts  of  the  legislature  of  Wisconsin, 
which,  it  was  alleged,  were  intended  to  aid  the  defendant  in  evading 
the  payment  of  its  debts,  and  which,  it  seemed  sufficiently  plain,  had 
had  that  effect,  whatever  might  have  been  the  intent  of  the  legislature 
passing  them. 

The  bill  alleging  that  the  corporate  authorities  were  trustees  for  the 
benefit  of  the  creditors  of  the  city,  and  that  the  propert}'  of  the  citizens 
was  a  trust  fund  for  the  payment  of  its  debts,  and  that  it  was  the  duty 
of  the  court  to  lay  hold  of  such  property  and  cause  it  to  be  justly 
applied,  now  prayed  that  the  court  would  subject  the  taxable  property 
of  the  city  to  the  payment  of  the  judgments.  It  asked  specifically  that 
a  decree  might  be  made,  subjecting  the  taxable  property  of  the  citizens 
to  the  payment  of  the  complainant's  judgments,  and  that  the  marshal 
of  the  district  might  be  empowered  to  seize  and  sell  so  much  of  it  as 
might  be  necessarj^,  and  to  pa}-  over  to  him  the  proceeds  of  such  sale. 

The  charter  of  the  city  contains  the  following  provision  : 

"  Nor  shall  any  real  or  personal  property  of  any  inhabitant  of  said 
city,  or  any  individual  or  corporation,  be  levied  upon  or  sold  by  virtue 
of  any  execution  issued  to  satisfy  or  collect  any  debt,  obligation  or 
contract  of  said  city." 

The  judges  holding  the  Circuit  Court  wei-e  divided  in  opinion  upon 
the  questions  argued  before  them.  The  bill  was  dismissed.  The  case 
was  now  here  on  certificate  of  division  and  appeal,  the  error  assigned 
being  that  the  court  dismissed  the  bill,  when  it  ought  to  have  given  the 
relief  prayed  for. 

JI.  W.  and  D.  W.  Tenney  (S.  U.  Pinney  with  them),  for  the  credi- 
tor appellant. 

D.  Hall  (M.  H.  Carpenter  and  H.  L.  Palmer  with  him),  contra. 

Hunt,  J.  .  .  .  We  are  of  the  opinion  that  this  court  has  not  the 
power  to  direct  a  tax  to  be  Iftvipd  for  the  payment  of  these  judgments. 
This  power  to  impose  burdens  and  raise  money  is  the  highest  attribute 
of  sovereignty,  and  is  exeroispd,  first,  to  raise  money  for  public  pur- 
poses only  j_and^  second,  by  the  power  of  legislative  authority  only. 
It  is  a  power  that  has  not  been  extended  to  the  judiciar}^  Especially" 
is  it  beyond  the  power  of  the  Federal  judiciary  to  assume  the  place 


70  REES   V.    CITY   OF   WATERTOWN. 

of  a  State  in  the  exercise  of  this  authority  at  once  so  delicate  and  so 
important.     The  question  is  not  entirely  new  in  this  court. 

[After  referring  to  authorities  upon  the  power  of  the  court  to  direct 
the  levy  of  a  tax  under  the  circumstances  of  this  case.] 

The  plaintiff  insists  that  the  court  may  accomplish  the  same  result 

under  a  different  name,  that  it  has  jurisdiction  of  the  persons  and  of 

the  property,  and  may  subject  the  propert}'  of  the  citizens  to  the  pa^'- 

ment  of  the  plaintiff's  debt  without  the  intervention  of  State  taxing 

^^^^_j^_,^_j^  officers,  and  without  regard  to  tax  laws.     His  theory  is  that  the  court 

V  -       ^    should  make  a  decree  subjecting  the  individual  property'  of  the  citizens 

V— ^     ^       of  Watertown  to  the  payment  of  the  plaintiff's  judgment;  direct  the 

marshal  to  make  a  list  thereof  from  the  assessment  rolls  or  from  such 

other  sources  of  information  as  he  ma}'  obtain  ;  report  the  same  to  the 

_,^__^^  court,  where  any  objections  should  be  heard  ;  that  the  amount  of  the 

-7^^*%       debt  should  be  apportioned  upon  the  several  pieces  of  property  owned 

b}'  individual  citizens  ;  that  the  marshal  should  be  directed  to  collect 

such  apportioned  amount  from  such  persons,  or  in  default  thereof  to 

sell  the  property. 

As  a  part  of  this  theor}',  the  plaintiff  argues  that  the  court  has 
authorit}'  to  direct  the  amount  of  the  judgment  to  be  whoUj-  made  from 
the  property  belonging  to  an}' inhabitant  of  the  city,  leaving  the  citizens 
to  settle  the  equities  between  themselves. 

This  theory  has  many  difficulties  to  encounter.     In  seeking  to  obtain 

for  the  plaintiff  his  just  rights  we  must  be  careful  not  to  invade  the 

rights  of  others.     If  an  inhabitant  of  the  cit}'  of  Watertown  should 

own  a  block  of  buildings  of  the  value  of  $20,000,  upon  no  principle  of 

law  could  the  whole  of  the  plaintiffs  debt  be  collected  from  that  prop- 

ert}-.     Upon  the  assumption  that  individual  property  is  liable  for  the 

jl^^^^j^^!!^!  payment  of  the  corporate  debts  of  the  municipality,  it  is  only  so  liable 

-v-^ro,^.^-  'A  for  its  proportionate  amount.     The  inhabitants  are  not  joint  and  sev- 

■^^  <^«/vOr.-  I  eral  debtors  with  the  corporation,  nor  does  their  property  stand  in  that 

duT^X^f^ !   relation  to  the  corporation  or  to  the  creditor.^     This  is  not  the  theory 

>^  ^i-j»vX/An^  of  law,  even  in  regard  to  taxation.     The  block  of  buildings  we  have 

'^'J'^^^>v3p    "-supposed  is  liable  to  taxation  only  upon  its  value  in  proportion  to  the 

value  of  the  entire  pro[)erty,  to  be  ascertained  by  assessment,  and  when 

the  proportion  is  ascertained  and  paid,  it  is  no  longer  or  further  liable. 

It  is  discharged.     The  residue  of  the  tax  is  to  be  obtained  from  other 

sources.     There  may  be  repeated  taxes  and  assessments  to  make  up 

delinquencies,  but  the  principle  and  the  general  rule  of  law  are  as  we 

have  stated. 

In  relation  to  the  corporation  before  us,  this  objection  to  the  habilit}- 
of  individual  property  for  the  payment  of  a  corporate  debt  is  presented 
in  a  specific  form.     It  is  of  a  statutory  character. 

The  remedies  for  the  collection  of  a  debt  arc  essential  parts  of  the 
contract  of  indebtedness,  and  those  in  existence  at  the  time  it  is  in- 
<;urred  must  be  substantially  preserved  to  the  creditor.  Thus  a  statute 
proliibi^ing  the  exercise  of  its  taxing  power  by  the  city  to  raise  money 


EEES    V.   CITY   OF   WATERTOWN.  71 

for  the  payment  of  these  bonds  would  be  void.-^     But  it  is  otherwise  of  j  x»j£x.>5j3»/v^ 
statutes  which  are  in  existence  at  the  time  the  debt  is  contracted.     Of  '  —^  *~" 
these  the  creditor  must  take  notice,  and  if  all  the  remedies  are  pre- 
served to  him  which  were  in  existence  when  his  debt  was  contracted 
he  has  no  cause  of  complaint.^ 

By  section  nine  of  the  defendant's  charter  it  is  enacted  as  followsl^ 
*^Nor  shall  any  real  or  personal  proi^erty  of  any  inhabitant  of  said  cityjY^  vaSoa, 
or  an}'  individual  or  corporation,  be  levied  upon  or  sold  by  virtue  oV^^^^I^a'.^*^ 
any  execution  issued  to  satisfy  or  collect  any  debt,  obligation,  or  yN-*^V«i>.§y^ 
contract  of  said  city." 

If  the  power  of  taxation  is  conceded  not  to  be  applicable,  and  the 
power  of  the  court  is  invoked  to  collect  the  mone}'  as  upon  an  exe- 
cution to  satisfj^  a  contract  or  obligation  of  the  city,  this  section  is 
directly  applicable  and  forbids  the  proceeding.  The  process  or  order 
asked  for  is  in  the  nature  of  an  execution  ;  the  propert}-  proposed  to 
be  sold  is  that  of  an  inhabitant  of  the  city ;  the  purpose  to  which  it  is 
to  be  applied  is  the  satisfaction  of  a  debt  of  the  cit}'.  The  proposed 
remedy  is  in  direct  violation  of  a  statute  in  existence  when  the  debt, 
was  incurred,  and  made  known  to  the  creditor  with  the  same  solemnity.. 
as_the  statute  which  gave  power  to  contract  the  debt.  All  laws  in 
existence  when  the  contract  is  made  are  necessarily'  referred  to  in  it 
and  form  a  part  of  the  measure  of  the  obligation  of  the  one  part}', 
and  of  the  right  acquired  by  the  other. ^ 

But  independently  of  this  statute,  upon  the  general  principles  of  law' 
and  of  equity  jurisprudence,  we  are  of  opinion Jhat  we  cannot  grant  theT  fvj 
relief  aslted  for.  The  plaintiff  invokes  the  aid  of  the  principle  that  all 
legal  remedies  having  failed,  the  court  of  chancer}-  must  give  him  a 
remedy ;  that  there  is  a  wrong  which  cannot  be  righted  elsewhere,  and 
hence  the  right  must  be  sustained  in  chancery.  The  difficulty  arises 
from  too  broad  an  application  of  a  general  principle.  The  great  ad- 
vantage possessed  by  the  court  of  chancery  is  not  so  much  in  its  en- 
larged jurisdiction  as  in  the  extent  and  adaptability  of  its  remedial 
powers.  Generally  its  jurisdiction  is  as  well  defined  and  limited  as  is 
that  of  a  court  of  law.  It  cannot  exercise  jurisdiction  when  there  is 
an  adequate  and  complete  remedy  at  law.  It  cannot  assume  control 
over  that  large  class  of  obligations  called  imperfect  obligations,  resting^  - 

upon  conscience  and  moral  duty  only,  unconnected  with  legal  obliga-  ^'*y^'*\^ 
tions.  Judge  Story  says,*  "There  are  cases  of  fraud,  of  accident,  and  ^  "*"  ''*^'^ 
of  trust  which  neither  courts  of  law  nor  of  equity  presume  to  relieve  or  ^-'^-  'i  '^ 
to  mitigate,"  of  which  he  cites  many  instances.  Lord  Talbot  says,*  >-*;-'^-*^-A-^^ 
"  There  are  cases,  indeed,  in  which  a  court  of  equity  gives  remedy  ^yf^^r^s*-^  x^ 
where  the  law  gives  none,  but  where  a  particular  remedy  is  given  by  <*-*^ — ^^^^  <>• 

1  Van  Hoffman  v.  City  of  Qnincy,  4  Wallace,  535. 

2  Cooley,  Constitutional  Limitations,  285,  287. 

*  Cooley,  Constitutional  Limitations,  285. 

*  1  Equity  Jurisprudence,  §  61. 

*  Heard  v.  Stanford,  Cases  Tempore  Talbot,  174. 


(. 


72  EEES   V.   CITY    OF   WATERTOWN. 

law,  and  that  remedy  bounded  and  circumscribed  by  particular  rulee. 
it  would  be  very  improper  for  this  court  to  take  it  up  where  the  law- 
leaves  it,  and  extend  it  further  than  the  law  allows." 

Generally  its  jurisdiction  depends  upon  legal  obligations,  and  its 
decrees  can  only  enforce  remedies  to  the  extent  and  in  the  mode  b}' 
law  established.  With  the  subjects  of  fraud,  trust,  or  accident,  when 
properly  before  it,  it  can  deal  more  completely  than  can  a  court  of  law. 
These  subjects,  however,  may  arise  in  courts  of  law,  and  there  be  well 
disposed  of.^ 

A  court  of  equity  cannot,  by  avowing  that  there  is  a  right  bnl  no 
remedy  known  to  the  law,  create  a  remed}'  in  violatioja  of  law,  or  even 


without  the  authority  of  law.   "IT^cts  upon  established  principles  not 


"rrx 


»3cus^,..,>_ 


^onl}',  but  through  established  channels.     Thus,  assume  that  the  plaintiff 
is  entitled  to  the  payment  of  his  judgment,  and  that  the   defendant 
neglects  its  duty  in  refusing  to  raise  the  amount  b}'  taxation,  it  does 
not  follow  that  this  court  ma}^  order  the  amount  to  be  made  from  the 
private  estate  of  one  of  its  citizens.     This  summaiy  proceeding  would 
involve  a  violation  of  the  rights  of  the  latter.     He  has  never  been  heard 
in  court.     He  has  had  no  opportunity  to  establish  a  defence  to  the  debt 
itself,  or  if  the  judgment  is  valid,  to  show  that  his  property-  is  not  liable 
s>->>!^.  vr\      to  its  payment.     It  is  well  settled  that  legislative  exemptions  from 
Ju^  ^^^^.^^^iaxation  are  valid,  that  such  exemptions  may  be  perpetual  in  their 
duration,  and  that  they  are  in  some  cases  beyond  legislative  Interfer- 
ence.    The  proceeding  supposed  would  violate  that  fundamental  prin:: 
ciple  contained  in  chapter  twentj^-ninth  of  Magna  Charta  and  embodied 
In  the  Constitution  of  the  United  States,  that  nojnan^hall  be  deprived^ 
his  property  without  due  process  of  law  —  that  is,  he  must  be  served  with 
notice  of  the  proceeding,  and  have  a  da}-  in  court  to  make  his  defence.'^ 
"Due  process  of  law  (it  is  said)  undoubtedly  means  in  the  due 
course  of  legal  proceedings,  according  to  those  rules  and  forms  which 
have  been  established  for  the  protection  of  private  rights."  ^     In  the 
New  England  States  it  is  held  that  a  judgment  obtained  against  a  town 
may  be  levied  upon  and  made  out  of  the  property  of  anj-  inhabitant  of 
the  town.     The  suit  in  those  States  is  brought  in  form  against  the  in- 
N  ^Axsih     habitants  of  the  town,  naming  it ;  the  individual  inhabitants,  it  is  said, 
•  ^     may  and  do  appear  and  defend  the  suit,  and  hence  it  is  held  that  the 
individual  inhabitants  have  their  day  in  court,  are  each  bound  bj-  the 
-  judgment,  and  that  it  may  be  collected  from  the  property  of  an}^  one  of 
■-^  *-*V<v/v«.-»jcthem.*     Tliis   is  local  law  peculiar  to  New  England.     It  is   not  the 
r;_^4T^        law  of  this  country  generally,  or  of  England.^     It  has  never  been  held 
*^  c,-^^ t>to  be  the  law  in  New  York,  in  New  Jersey,  in  Pennsj'lvania,  nor,  as 
(51  stated  by  Mr.  Coole}',  in  any  of  the  Western  States.*     So  far  as  it 

'  1  Story's  Equity  Jurisprudence,  §  60. 

2  Westervelt  i-.  Gregg,  12  New  York,  209.  »  lb. 

*  See  the  cases  collected  in  Cooley's  Constitutional  Limitations,  240-245. 
8  Rus.sol  \\  Men  of  Devon.  2  Term,  667. 

*  See  Emeric  v  Oilman,  10  California,  408,  wliere  all  the  cases  are  collected. 


REES  V.   CITY   OF   WATERTOWN. 


73 


rests  upon  the  rule  that  these  municipalities  have  no  common  fund, 
and  that  no  other  mode  exists  by  which  demands  against  them  can  be 
enforced,  he  says  that  it  cannot  be  considered  as  applicable  to  those 
States  where  provision  is  made  for  compulsory  taxation  to  satisfy 
judgments  against  a  town  or  city.^ 

The  general  principle  of  law  to  which  we  have  adverted  is  not  dis- 
turbed by  these  references.  It  is  applicable  to  the  case  before  us. 
Whether,  in  fact,  the  individual  has  a  defence  to  the  debt,  or  by  waj* 
of  exemption,  or  is  without  defence,  is  not  important.  To  assume  that 
he  has  none,  and,  therefore,  that  he  is  entitled  to  no  day  in  court,  is  to 
assume  against  him  the  very  point  he  may  wish  to  contest. 

Again,  in  the  case  of  Emeric  v.    Gilman,  before  cited,  it  is  said :  ^  ^^ 

"  The  inhabitants  of  a  county  are  constantly  changing  ;  those  who  con-^ 
tributed  to  the  debt  ma}-  be  non-residents  upon  the  recovery  of  the^- 
judgment  or  the  lev}'  of  the  execution.     Those  who  opposed  the  crea-i 
tion  of  the  liability  may  be  subiected  to  its  payment,  while  those,  by 


whose  fault  the  burden  has  been  imposed,  may  be  entirely  relieved  of 


.  To  enforce  this  right  against  the  inhabitants  of  a   "to  5Uj>aft_^ 


responsibilit3\ 

counliLimuIdJiiad_tQ_sudi_ajQaultiplicity  of  5uita_jas,to_render  the  right 


rignt 
valueless."  We  do  not  perceive,  if  the  doctrine  contended  for  is  cor-' 
rect,  why  the  money  might  not  be  entirely  made  from  property  owned 
by  the  creditor  himself,  if  he  should  happen  to  own  property  within  the 
limits  of  the  corporation,  of  sufficient  value  for  that  purpose. 

The  difficulty  and  the  embarrassment  arising  from  an  apportionment 
or  contribution  among  those  bound  to  make  the  payment  we  do  not 
regard  as  a  serious  objection.  Contribution  and  apportionment  are 
recognized  heads  of  equity  jurisdiction,  and  if  it  be  assumed  that  pro- 
cess could  issue  directly  against  the  citizens  to  collect  the  debt  of  the 
city,  a  court  of  equity  could  make  the  apportionment  more  conveniently 
than  could  a  court  of  law.'^ 

We  apprehend,  also,  that  there  is  some  confusion  in  the  plaintiffs 
proposition,  upon  which  the  present  jurisdiction  is  claimed.     It  is  con-  .  ^ 

ceded,  and  the  authorities  are  too  abundant  to  admit  a  question,  that  V^S^-o*'^^^'^- 
there  is  no  chancery  jurisdiction  where  there  is  an  adequate  remedy  at/'''^^^  ^^^""^ 
law.     The  writ  of  mandamus  is,  no  doubt,  the  regular  remedy  in  a  case     "  '         ^     ' 
like  the  present,  and  ordinarjlv  it  is  adequate  and  its  results  are  satis- 
Xactory.     The  plaintiff  alleges,  however,  in  the  present  case,  that  he 
has  issued  such  a  writ  on  three  different  occasions;  that,  by  means  of 
the  aid  afforded  by  the  legislature  and  by  the  devices  and  contrivances 
set  forth  in  the  bill,  the  writs  have  been  fruitless  ;  that,  in  fact,  they 
afford  him  no  remedy.     The  remedy  is  in  law  and  in  theory  adequate 
and  perfect.     The  difficulty  is  in  its  execution  only.     The  want  of  at  ^JUa  <>^A!L 
remedy  and  the  inability  to  obtain  the  fruits  of  a  remedy  are  quite  di_s:.i'feb 
tinct,  and  yet  they  are  confounded  in  the  present  proceeding.     To 
illustrate :    the  writ  of  habere  facias  possessionem  is  the  established 

1  Cooley's  Constitutional  Limitations,  246. 

^  1  Story',-  Equity  Jurisprudence,  §  470  and  onwards. 


74 


THOMPSON  V.   ALLEN  COUNTY. 


remedy  to  obtain  the  fruits  of  a  judgment  for  the  plaintiff  in  ejectment. 
It  is  a  full,  adequate,  and  complete  remedy.  Not  many  years  since 
Ithere  existed  in  Central  New  York  combinations  of  settlers  and  tenants 
disguised  as  Indians,  and  calling  themselves  such,  who  resisted  the 
execution  of  this  process  in  their  counties,  and  so  effectually  that  for 
some  years  no  landlord  could  gain  possession  of  his  land.  There  was 
a  perfect  remedj'  at  law,  but  through  fraud,  violence,  or  crime  its  exe- 
cution was  prevented.  It  will  hai'dly  be  argued  that  this  state  of 
things  gave  authority'  to  invoke  the  extraordinary  aid  of  a  court  of 
chancery.  The  enforcement  of  the  legal  remedies  was  temporarily 
suspended  by  means  of  illegal  violence,  but  the  remedies  remained  as 
before.  It  was  the  case  of  a  miniature  revolution.  The  courts  of  law 
[lost  no  power,  the  court  of  chancery  gained  none.  The  present  case 
{stands  upon  the  same  principle.  The  legal  remedy  is  adequate  and_ 
complete,  and  time  and  the  law  must  perfect  its  execution. 

Entertaining  the  opinion  that  the  plaintiff  has  been  unreasonably 
obstructed  in  the  pursuit  of  his  legal  remedies,  we  should  be  quite  will- 
ing to  give  him  the  aid  requested  if  the  law  permitted  it.  We  cannot, 
however,  find  authority  for  so  doing,  and  we  acquiesce  in  the  conclusion 
of  the  court  below  that  the  bill  must  be  dismissed. 

Judgment  affirmed. 


-\cTv    &-U^ 


Mr.  Justice  Clifford,  with  whom  concurred  Mr.  Justice  Swatne, 
dissenting : 

I  dissent  from  the  opinion  of  the  court  in  this  case  upon  the  ground 
that  equity  will  never  suffer  a  trust  to  be  defeated  by  the  refusal  of  the 
trustee  to  administer  the  fund,  or  on  account  of  the  misconduct  of  the 
trustee,  and  also  because  the  effect  of  the  decree  in  the  court  below,  if 
affirmed  b}'  this  court,  will  be  to  give  judicial  sanction  to  a  fraudulent 
repudiation  of  an  honest  debt.  For  which  reasons,  as  it  seems  to  me, 
the  decree  of  the  subordinate  court  should  be  reversed. 


THOMPSON  V.   ALLEN  COUNTY  et  als. 

115  U.  S.  .5.50.1 


-=aj«-^-ti»^^    Appeal  from  U.  S.  Circuit  Court  for  District  of  Kentucky. 

■'^--^*-4^         '  Bill  in  equity.     The  case  was  tried  on  bill,  answer,  exceptions  to 

-"^~o  vj^-v^.  answer,  and  a  stipulation  as  to  the  facts. 

,^2^^^}^^       Plaintiff  liad  recovered  judgment  against  Allen  County  on  coupons 

«jo^I^/''i'or  interest  on  bonds,  issued  by  the  county  under  autliority  of  an  act 
of  the  legislature  to  pay  for  subscription  to  railroad  stock.  Executions 
were  returned  "  no  property  found."  The  act  under  which  the  bonds 
were  issued  provided  that  the  County  Court  should  levy  a  tax  for  "a 


1  Statement  abridged.     I'ortions  of  opinions  omitted. — Ed. 


^±^ 


l^ 


THOMPSON  V.    ALLEN  COUNTY.  75 

sum  sufficient  to  pay  the  interest  on  such  bonds  as  it  accrues,  together 
with  the  costs  of  collecting  the  same."  The  act,  as  amended,  also 
required  the  County  Court  to  appoint  a  special  collector  to  collect  all 
taxes  levied  under  it.  The  U.  S.  Circuit  Coui't,  at  the  instance  of  the 
present  plaintiffs,  issued  a  writ  of  mandamus  to  the  justices  of  the 
Allen  County  Court,  under  which  thej^  levied  a  tax  to  pa}'  the  plain- 
tiff's judgment.  They  also  elected  one  Stork  collector  of  said  tax  levy, 
but  he  refused  to  give  bond  or  to  accept  the  office.  The  Count}-  Court 
in  good  faith  and  diligently  endeavored  to  find  a  proper  person  to  act 
as  collector,  but  no  proper  person  could  be  found  who  would  undertake 
that  office.  The  parties  now  agree  that  the  plaintiff  is  without  remedy 
for  the  collection  of  his  debt,  except  through  the  aid  of  the  U.  S.  Cir- 
cuit Court  in  the  appointment  of  a  receiver,  as  prayed  for  in  the  bill, 
or  other  appropriate  order  of  the  court. 

The  bill  in  equit}-  gives  the  names  of  about  thirty  of  the  principal 
tax-payers  of  the  county,  with  the  value  of  the  assessed  propert}'  of 
each,  and  the  amount  of  tax  due  from  him  under  said  levy,  alleging 
that  the  tax-payers  were  too  numerous  to  be  sued,  and  praying  that 
these  might  be  sued  as  defendants  representing  all  others  in  like  cir- 
cumstances, and  be  required,  with  the  count}',  to  answer  the  bill. 

The  prayer  of  the  bill  for  relief  was,  that,  inasmuch  as  the  complain- 
ant was  without  remedy  at  law,  the  court  sitting  in  chancery  would 
appoint  a  receiver,  who  shonld  collect  these  taxes,  and  that  the  money 
arising  therefrom  be  from  time  to  time  paid  over  in  satisfaction  of 
plaintiff's  judgments,  and  that  the  several  tax-payers  of  said  county, 
made  defendants,  be  required  to  pay  into  court,  wij/h  like  effect  the 
sums  due  by  them  as  allcgRd  in  thft  bilj. 

The  justices  in  the  Circuit  Court  were  divided  in  opinion.  In  ac- 
cordance with  the  view  of  the  presiding  judge,  the  bill  was  dismissed. 
(13  Federal  Reporter,  97.)     An  appeal  was  taken. 

Charles  Eglnton,  (  TF.  0.  Dodd  viiXh.  him,)  for  appellant. 

John  Mason  Brown,  {Alexander  P.  Humphrey  and  George  31.  Davie, 
with  him,)  for  appellees. 

Miller,  J.  .  .  .  The  cases  in  which  it  has  been  held  that  a  court 
of  equity  cannot  enforce  the  levy  and  collection  of  taxes  to  pay  the 
debts  of  municipal  corporations  began  with  Walkleij  v.  City  of  Mus- 
catine, 6  Wall.  481. 

In  that  case,  the  complainant  Walkley  had  procured  judgments 
against  the  city  of  Muscatine  for  interest  on  bonds  of  the  city,  execu- 
tions had  been  returned  "  nulla  bona"  the  mayor  and  aldermen  had 
refused  to  levy  a  tax  for  the  payment  of  the  judgments,  and  had  used 
the  annual  tax  for  other  purposes  and  paid  nothing  to  plaintiff. 

Walkley  then  filed  his  bill  in  equity  praying  a  decree  tliat  the  mayor 
and  aldermen  be  compelled  to  levy  a  tax  and  appropriate  so  much  of 
its  proceeds  as  might  be  necessary  to  pay  his  judgments. 

This  court  said,  by  Mr.  Justice  Nelson,  that   the  remedy  was  by  K '^ 
tnandamus  at  law,  and  "we  have  been  furnished  with    no  authority    "^ 


76  THOMPSON  V.   ALLEN  COUNTY. 

for  the  substitution  of  a  bill  in  equity  and  injunction  for  the  writ  of 

mandamus,"  p.  483;  and  he  adds,  that  "  a  court  of  equit}'  is  invoked 

as   auxiliary    to  a  court  of  law  in  the  enforcement  of  its  judgments 

onl}'   when   the    latter   is   inadequate   to   afford   the  proper  remedy," 

pp.  483-4. 

^  w^~^    By  inadequacy  of  the  remedy  at  law  is  here  meant,  not  that  it  fails 

y^j^jt-*^  <  to  produce  the  money  —  that  is  a  very  usual  result  in  the  use  of  all 

'remedies  — but  that  in  its  nature  or  character  it  is  not  fitted  or  adapted 

,'  to  the  end  in  view. 

[The  learned  Judge  then  refers  to  Mees  v.  Watertown^  19  Wallace, 
107,  and  other  cases;  and  gives  an  extract  from  Waite,  C.  J.,  in 
Meriwether  v.  Garrett^  102  U.  S.  472,  ending  with  the  following  sen- 
tence :  "  Whether  taxes  levied  in  obedience  to  contract  obligations,  or 
under  judicial  direction,  can  be  collected  through  a  receiver  appointed 
b}'  a  court  of  chancery,  if  there  be  no  public  officer  charged  with  au- 
thority from  the  legislature  to  perform  that  duty,  is  not  decided,  as  the 
case  does  not  require  it."] 

But  though  the  question  was  not  then  decided,  and  it  is  urged  upon 
eJfc^^^j>t&^  ws  now,  we  see  no  more  reason  to  hold  that  the  collection  of  taxes 
>^vic.t-««N/v.  ab'ead^'  assessed  is  a  function  of  a  court  of  equity  than  the  levy  or 
>\>i^*><w_  assessment  of  such  taxes.^  A  court  of  law  possesses  no  power  to  levy 
vtaxes^  Its  power  to  compel  officers  who  are  lawfullj-  appointed  for 
that  purpose,  in  a  case  where  the  dut\'  to  do  so  is  clear,  and  is'  strictly 
ministerial,  rests  upon  a  ground  very  different  from  and  much  narrower 
than  that  under  which  a  court  of  chancer}'  would  act  in  appointing 
its  own  officer  either  to  assess  or  collect  such  a  tax. 

In  the  one  case  the  officers  exist,  the  duty  is  plain,  the  plaintiff  has 
a  legal  right  to  have  these  officers  perform  that  duty  for  his  benefit,  and 
the  remedy  to  compel  this  performance,  namely,  the  writ  of  mandamus, 
has  been  a  well  known  process  in  the  hands  of  the  courts  of  common 
law  for  ages.  In  the  other  there  exists  no  officer  authorized  to  lev}' 
ihe  tax  or  to  collect  it  when  levied.  The  power  to  enforce  collec- 
tion when  the  tax  is  levied,  or  to  cause  it  to  be  levied  bj-  existing 
officers,  is  a  common-law  power,  strictly  guarded  and  limited  to  cases 
of  mere  ministerial  duty,  and  is  not  one  of  the  powers  of  a  court  of 
chancer}'.  It  would  require  in  this  court,  not  the  compulsory  process 
against  some  existing  officer  to  make  him  perform  a  recognized  duty, 
but  tlie  appointment  by  the  court  of  such  an  officer  and  a  decree  direct- 
ing him  what  to  do. 

In  the  one  case,  his  power  proceeds  from  the  law,  and  he  is  com- 
pelled to  exercise  it ;  in  the  other,  it  proceeds  from  the  court  which 
first  makes  its  own  decree,  and  makes  an  officer  to  enforce  it.  No 
fsuch  power  has  ever  yet  been  exercised  by  a  court  of  chancery.  The 
uppoiiittnent  of  iis  own  officer  to  collect  taxes  levied  by  order  of  a 
coinnion-law  coun  is  as  much  without  authority,  as  to  appoint  the 
same  officer  to  lev^j  and  collect  the  tax.  Tliey  are  parts  of  the  same 
proceeding,  and  relate  to  the  same  matter.     If  the  common-law  court 


THOMPSON  V.   ALLEN  COUNTY.  77 

can  compel  the  assessment  of  a  tax,  it  is  quite  as  competent  to  enforce 
its  collection  as  a  court  of  chaucer}-.  Having  jurisdiction  to  compeJ 
the  assessment,  there  is  no  reason  why  it  should  stop  short,  if  any 
further  judicial  power  exists  under  the  law,  and  turn  the  case  over  to 
a  court  of  equity.  Its  sheriff  or  marshal  is  as  well  qualified  to  collect 
the  tax  as  a  receiver  appointed  by  the  court  of  cliancery. 

The  difficulty  is  that  no  power  exists  in  either  court  to  fill  the 
yacanc}"  in  the  office  of  tax  collector ;  and  the  case  of  Lee  Count,. 
Supervisors  v.  Rogers^  7  Wall.  175,  where  the  laws  of  the  State  of 
Iowa  expressly-  authorized  the  court  to  enforce  its  writ  of  mandamus 
by  making  such  appointment,  the  only  case  in  which  it  has  ever  been 
done,  shows  that  without  such  legislative  authority  it  cannot  be  done. 

It  is  the  duty  of  the  marshals  of  the  Federal  courts  and  the  sheriffs,  "-te^^ 

of  State  courts  to  levy  executions  issuing  from  these  courts  on  the  ^''^'f"''*''^^ 
property  of  defendants,  and  sell  it,  to  raise  money  to  pay  their  judg-  '^'^■'^^  **"V^ 
ments.  Let  us  suppose  that,  for  some  reason  or  other,  the  office  of 
marshal  or  sheriff  became  vacant  for  a  while.  Would  that  authorize 
the  court  of  equity  of  the  Federal  or  State  government  to  appoint  a 
sheriff  or  marshal  ?  or  to  appoint  a  receiver  to  lev}-  the  execution  ?  or, 
if  it  had  been  levied,  to  sell  the  property,  collect  the  purchase-money, 
and  pay  it  to  plaintiff  ?  If  this  cannot  be  done,  if  it  never  has 
been  done,  why  can  it  do  a  much  more  unjudicial  act,  bj-  appointing  a 
collector  to  collect  the  taxes,  or,  what  is  still  less  appropriate,  appoint- 
ing a  receiver,  and  endow  him  with  that  power  ? 

To  appoint  a  marshal  or  a  sheriff  to  execute  the  process  of  a  court 
to  enforce  the  judgment  of  that  court,  is  not  such  a  wide  departure 
from  the  judicial  function  as  to  appoint  a  receiver  to  collect  taxes  ;  but 
no  case  has  been  cited  of  the  exercise  of  even  the  former  power  by  the 
court,  much  less  the  appointment,  by  a  court  of  chancery,  of  an  officer 
to  execute  the  processes  of  a  court  of  law.  The  appointment  of  special 
masters  or  commissioners  to  make  sales  under  decrees  in  chancer}', 
is  the  ordinary  mode  of  that  court  to  enforce  its  decrees  in  cases  where 
the  court  has  jurisdiction  of  the  subject  matter  of  the  suit. 

Not  only  are  the  decisions  here  reviewed  of  our  own  court  clearl}'' 
opposed  to  the  exercise  of  this  power  by  the  court  of  equity,  but  th( 
decisions  of  the  highest  court  of  the  State  of  Kentucky  are  equalh^ 
emphatic.  It  is  the  powers  derived  from  the  statute  law  of  that  State  | 
under  which  alone  this  tax  can  be  collected.  The  issue  of  the  bonds, 
on  which  the  judgment  was  obtained  was  by  virtue  of  a  special  statute, 
and  that  statute  prescribed  the  mode  of  levying  and  collecting  this  tax., 

It  enacted  that  its  collection  should  not  be  by  the  sheriff  who  col  ' 
lected  the  ordinary  taxes  for  the  State  and  county,  but  that  a  special 
tax  collector  should  be  appointed  for  that  purpose  by  the  justices  of 
the  County  Court  who  levied  the  tax.  The  Court  of  Appeals,  construing 
this  statute,  which  was  in  existence  when  the  bonds  were  issued,  holds 
that  no  other  officers  but  these  can  collect  the  taxes,  and  has  decided, 
both  in  reference  to  this  law  and  the  Constitution  of  the  State,  tliat  a 


78  THOMPSON  V.    ALLEN  COUNTY. 

court  of  chancery  cannot  appoint  such  an  officer  or  exercise  this  func- 
tion of  tax  collector.  McLean  County  Precinct  v.  Deposit  Bank, 
81  Ky.  254. 

This  decision,  if  not  conckisive,  is  entitled  to  great  weight  as  con- 
struing the  statute  under  which  alone  this  tax  can  be  levied  and 
collected. 

These  considerations  require  that  the  answers  to  each  of  the  three 
questions  certified  to  us  by  the  judges  of  the  Circuit  Court  be  in  the 
negative,  and  that  the  decree  of  that  court  dismissing  the  bill  be 

Harlan,  J.,  dissenting^  [After  stating  the  case,  and  referring  to 
various  authorities  relied  on  in  the  majority  opinion.] 

These  cases  only  establish  the  doctrine  that  the  levying  of  taxes  is 
not  a  judicial  function. 

It  seems  to  me  that  the  granting  of  relief  to  Thompson  will  not,  in 
any  degree,  disturb  the  principles  announced  in  the  foregoing  cases. 
The  bill  does  not  ask  the  court  to  usurp  the  function  of  levying 
taxes.  That  duty  has  been  performed  by  the  only  tribunal  n  1111101-177(7 
to  do  it,  viz.,  the  County  Court  of  Allen  County.  Nothing  remains  to 
be  done,  except  to  collect  from  individuals  specific  sums  of  money  which, 
they  are  under  legal  obligation  to  pay.  The  collections  of  these  sums 
will  not  intertere  with  an}'  discretion  with  which  the  Allen  County 
Court  is  invested  by  law  ;  for,  b}-  its  own  order,  made  in  conformity 
with  the  law  of  the  State,  and  by  the  judgment  in  the  mandamus  pro- 
ceedings, the  sums  due  from  the  individual  defendants,  and  from  other 
tax-pa3'ers,  have  been  set  apart  for  the  payment  of  Thompson's  judg- 
ments. Those  sums,  when  collected,  cannot  be  otherwise  used.  As 
the  Count}'  Court  cannot  find  an}'  one  who  will  accept  the  office  of 
special  collector,  and  as  the  parties  agree  that  there  is  no  mode  of  col- 
lecting the  sums  set  apart  in  the  hands  of  the  individual  defendants 
and  other  tax-payers,  for  the  payment  of  Thompson,  I  am  unable  to 
perceive  why  the  Circuit  Court,  sitting  in  equity,  may  not  cause  these 
sums  to  be  applied  in  satisfaction  of  its  judgments  at  law.  The  plain- 
tiff has  no  remedy  at  law  ;  for,  the  common-law  court  in  rendering 
judgment  has  done  all  that  it  can  do,  and  the  local  tribunal,  by  levying 
the  required  tax  and  seeking  the  aid  of  a  special  collector  to  collect  it, 
has  done  all  that  it  can  do.  There  is  no  suggestion,  or  even  pretence, 
tiiat  the  tax-[)ayers  who  arc  sued  dispute  the  regularity  of  the  assess- 
ment made  against  them  by  the  County  Court.  Admitting  their  legal 
liability  for  the  specific  amounts  assessed  against  them,  and  conceding 
that  what  they  owe  must,  when  paid,  go  in  satisfaction  of  Thompson's 
judgments,  they  dispute  the  authority  of  any  judicial  tribunal  to.  com^ 
pel  tlicm  to  pay  it  over.  With  money  in  their  hands,  equitably 
belonging  to  the  judgment  creditor,  they  walk  out  of  the  court  whose 
judgments  remain  unsatisfied,  announcing,  in  effect,  that  they  will  hold 
negotiations  only  with  a  "  special  collector,"  who  lias  no  existence. 


MOUNT   PLEASANT   V.   BECKWITH.  79      

Thai  the  court  below,  sitting  in  equity  —  after  it  has  given  a  judg-  *~^  *^'*^A^ 
raent  at  law  for  monej',  and  after  a  return  of  7iiilla  bona  against  the  *\  Vv*ij^ijm 
debtor — may  not  lay  hold  of  money's  set  apart,  by  the  act  of  the  s^j^.^^^  ij^^ 
debtor^  in  the  hands  of  individuals  exclusively  for  the  payment  of  that  ^ 

juclc/me?it,  and  which  money,  the  parties  agree,  cannot  be  otherwise 
reached  than  by  being  brought  into  that  court,  under  its  orders,  is  a 
confession  of  helplessness  on  the  part  of  the  courts  of  the  United 
States~that  I  am  unwilhng  to  make.  I,  therefore,  dissent  from  the 
opinion  and  judgment  in  this  case. 

^^^  \j^^  \^  MOtjNT   PLEASANT   v.  BECKWITH. 

(5-  1879.     100  U.  S.  514.1 

Appeal  from  U.  S.  Circuit  Court  for  Eastern  District  of  Wisconsin, 

Bill  in  equity  b}'  Beckwith  against  the  town  of  Mount  Pleasant,  the 
town  of  Caledonia,  and  the  city  of  Racine  to  enforce  the  payment  of 
certain  bonds. 

In  1853  the  town  of  Racine  and  each  of  the  three  above-named  munic- 
ipalities were  distinct  municipal  corporations  established  by  law.     The 
bonds  in  suit  were  issued  b}'  the  town  of  Racine,  under  authority  of  the 
legislature.     In  1859  the  name  of  the  town  of  Racine  was  changed  to 
Orwell.     In   1860  tlie  legislature   passed   an  act  vacating   and  extin- 
guishing the  town  of  Orwell  (formerly  the  town  of  Racine),  and  en- 
acting that  thereafter  it  should  have  no  existence  as  a  body  politic  andN^^^-Q^-^  '^ 
corporate.     This  act  of  1860  annexes  part  of  the  territoiy  of  Orwell  to  ^Cfe^<>j>.A.^^ 
Caledonia,  and  the  remainder  to  Mount  Pleasant ;  but  contains  no  pro  ^LC«Jl>J3lsi_ 
vision  relative  to  the  payment  of  the  existing  indebtedness  of  Orwell.    ^^jlAjV  ^  "? 
In  1871  an  act  was  passed  taking  from  Mount  Pleasant  a  portion  of  the  »JU^  ""^j^j 
territory  which  had  been  thus  annexed  to  it  in  1860,  and  adding  such  ^y-^-'^^^^vi 
territory  to  the  city  of  Racine.     This  act  of  1871  provides  that  the  city  of^^'^-^  ^■'^J^ 
Racine  "  shall  assume  and  pay  so  much  of  the  indebtedness  of  the  town    V'V^'v^>'0« 
of  Racine  as  the  lands  described  in  the  first  section  of  the  act  may  be  ^'•^'JLa^^CJU- 
or  become  legally  chargeable  with  and  liable  to  pay."  'v-^-'«»^njO  su* 

The  court,  upon  the  aforesaid  facts  and  upon  the  report  of  a  master  «wj>.-,<Jtvjj 
stating  the  respective  proportions  and  valuations  of  the  taxalile  prop-  ^ 
erty  received  by  each  of  the  defendant  municipalities  from  the  town  of 
Orwell,  made  a  decree  that  the  defendants  should  severally  pay  certain 
proportions  of  the  debt  due  Beckwith.  The  decree  was  based  on  the 
theory  that  an  equitable  liability  for  the  indebtedness  of  the  town  of 
Racine,  alias  Orwell,  accrued  against  the  defendant  municipalities,  to 
which  such  territory  was  distributed,  in  the  proportion  which  the  tax- 
al)le  property  received  by  each  and  the  valuation  thereof  bore  to  the 
whole  taxable  property  and  the  whole  debt  of  such  vacated  town. 

1  Statement  abridged.     Argument  and  part  of  opinion  omitted.  —  Ed. 


fC*^-^ 


80  MOUNT    PLEASANT    V.    BECKWITH. 

From  this  decree  the  town  of  Mount  Pleasant  and  the  town  of  Cale- 
donia appealed. 

X.  S.  Dixon  and  tTohn  T.  Fish,  for  appellants. 

Wm.  P.  Lynde^  contra. 

Clifford,  J.  [After  recapitulating  the  facts,  and  stating  the  power 
of  the  legislature  over  municipal  corporations,  and  noting  the  fact  that 
the  city  of  Racine  did  not  appeal  from  the  decree  below.]  .  .  .  The  only 
question  open  in  the  case  for  examination  is  whether  the  other  two  re- 
spondent municipal  corporations  are  liable  to  an}-  extent  for  the  debts 
of  the  extinguished  municipalit}*,  portions  of  whose  territory  were  trans- 
ferred by  the  legislature  into  their  respective  jurisdictions.  We  sa}-, 
liable  to  any  extent,  because  the  question  of  amount  was  submitted  to 
the  master,  and  the  record  shows  that  neither  of  the  appellants  excepted 
to  the  master's  report.  Gordon  v.  Lewis,  2  Sum.  143  ;  McMicken  v. 
Perin,  18  How.  507.  Nor  do  either  of  the  assignments  of  error  allege 
that  the  master  committed  any  error  in  that  regard.  JBrocJcett  v. 
Brockett,  3  id.  691. 

Viewed  in  that  light,  as  the  case  should  be,  it  is  clear  that  if  the  ap- 
pellants are  liable  at  all  the^^  are  liable  for  the  respective  amounts 
specified  in  the  decree.  Harding  v.  Handy ^  11  Wheat.  103  ;  Story 
V.  Livingston^  13  Pet.  359. 

Where  one  town  is  by  a  legislative  act  merged  in  two  others,  it  would 
doubtless  be  competent  for  the  legislature  to  regulate  the  rights,  duties, 
and  obligations  of  the  two  towns  whose  limits  are  thus  enlarged  ;  but  if 
that  is  not  done,  that  it  must  follow  that  the  two  towns  succeed  to  all 
the  public  property  and  immunities  of  the  extinguished  municipalit}'. 
Morgan  v.  Leloit^  City  and  Totim,  7  Wall.  613,  617. 

It  is  not  the  case  where  the  legislature  creates  a  new  town  out  of  a 
'^rt  of  the  territory  of  an  old  one,  without  making  provision  for  the 
payment  of  the  debts  antecedently  contracted,  as  in  that  case  it  is  settled 
law  that  the  old  corporation  retains  all  the  public  property  not  included 
within  the  limits  of  the  new  municipalit}-,  and  is  liable  for  all  the  debts 
contracted  by  her  before  the  act  of  separation  was  passed.  Town 
of  Lepere  and  Others  v.  Town  of  Bellevue  and  Others,  31  Wis. 
120,  125. 

Instead  of  that,  it  is  the  case  where  the  charter  of  one  corporation 
is  vacated  and  rendered  null,  the  whole  of  its  territory  being  annexed 
to  two  others.  In  such  a  case,  if  no  legislative  arrangements  are  made, 
tlie  effect  of  the  annulment  and  annexation  will  be  that  tiie  two  enlarged 
corporations  will  be  entitled  to  all  the  public  property  and  immunities 
of  the  one  that  ceases  to  exist,  and  that  they  will  become  liable  for  all 
the  legal  debts  contracted  b}'  her  prior  to  the  time  when  the  annexation 
is  carried  into  operation. 

Speaking  to  the  same  point,  the  Supreme  Court  of  Missouri  held  that 
where  one  corporation  goes  entirely  out  of  existence  by  being  annexed 
£6'or  morsTf'd  in  another,  if  no  arrangements  are  made,  resjiectiug,, the 
"propFPt}'  .Hid  liiiliilitios  of  the  corporation  that  ceases  to  exist,  the  sub- 


J 
>^i 

r  pa^ 


MOUNT   PLEASANT   V.    BECKWITH.  81 

sisting  corporation  will  be  entitled  to  all  the  propert}-  and  be  answer- 
able for  all  the  liabilities-      Th<nnpso/i  \.  Abbott,  GI  JNIo.  17G,  177. 

Grant   that,  and   it  follows  that  when  the   corporation  first  named     i  ^ 

ceases  to  exist  there  is  then  no  power  left  to  control  in  its  behalf  any  A^' "  '*^^J' 
of  its  funds,  or  to  pay  off  anj-  of  its  indebtedness.     Its  property  passes        ^^ 
into  the  hands  of  its  successor,  and  when  the  benefits  are  taken  the  a  jt 

burdens  are  assumed,  the  rule  being  chat  the  successor  who  takes  the  -« "-^-^  -«>-* 
benefits  must  take  the  same  cum  o?iere,  and  that  the  successor  town  is 
thereby  estopped  to  den}-  that  she  is  liable  to  respond  for  the  attendant 
burdens.     Swain  v.  Seamens,  9  "Wall.   254,  274  ;  Pickard  v.  SearSy 
6  Ad.  &  Ell.  474. 

Powers  of  a  defined  character  are  usually  granted  to  a  municipal  cor-  *> 
poration,  bat  that  does  not  prevent  the  legislature  from  exercising  un-  \ 
limited  control  over  their  charters.  It  still  has  authority  to  amend  their  | 
charters,  enlarge  or  diminish  their  powers,  extend  or  limit  their  boun-  ] 
daries,  consolidate  two  or  more  into  one,  overrule  their  legislative 
action  whenever  it  is  deemed  unwise,  impolitic,  or  unjust,  and  even 
abolish  them  altogether,  in  the  legislative  discretion,  and  substitute  in 
their  place  those  which  are  different.  Cooley,  Const.  Lim.  (4th  ed.) 
232. 

Municipal  corporations,  says  Mr.  Justice  Field,  so  far  as  thev  are 
invested  with  subordinate  legislative  powers  for  local  purposes,  are 
mere  instrumentalities  of  the  State  for  the  convenient  administration  of 
their  affairs  ;  but  when  authorized  to  take  stock  in  a  railroad  companv, 
and  issue  their  obligations  in  payment  of  the  stock,  they  are  to  that  ex- 
tent to  be  deemed  private  corporations,  and  their  obligations  are  secured 
by  all  the  guaranties  which  protect  the  engagements  of  private  indi- 
viduals.    Broughton  v.  Pensacola,  93  U.  S.  266,  269. 

Modifications  of  their  boundaries  ma}-  be  made,  or  their  names  may 
be  changed,  or  one  may  be  merged  in  another,  or  it  may  be  divided  and 
the  moieties  of  their  territory  may  be  annexed  to  others  ;  but  in  all  these 
cases,  if  the  extinguished  municipality  owes  outstanding  debts,  it  will  be 
presumed  in  every  such  case  that  the  legislature  intended  that  the  lia- 
bilities as  well  as  the  rights  of  property  of  the  corporation  which  thereby 
ceases  to  exist  shall  accompany  the  territory  and  propert}'  into  the 
jurisdiction  to  which  the  territory  is  annexed.  Colchester  v.  Scabe?-, 
3  Burr.  1866. 

Neither  argument  nor  authority  is  necessary  to  prove  that  a  State 
legislature  cannot  pass  a  valid  law  impairing  the  obligations  of  a  contract, 
as  that  general  proposition  is  universally  admitted.  Contracts  under  the 
Constitution  are  as  sacred  as  the  Constitution  that  protects  them  from 
infraction,  and  yet  the  defence  in  this  case,  if  sustained,  will  establish 
the  proposition  that  the  effect  of  State  legislation  maj*  be  such  as  to  de- 
prive a  party  of  all  means  of  sustaining  an  action  of  any  kind  for  their 
enforcement.  Cases,  doubtless,  may  arise  when  the  party  cannot  col- 
lect what  is  due  under  the  contract ;  but  he  ought  always  to  be  able  by 
some  proper  action  to  reduce  his  contract  to  judgment. 

6 


82  MOUNT   PLEASANT   V.    BECKWITH. 

Suppose  it  be  admitted  that  the  act  of  the  State  legislature  annulling 
the  charter  of  the  municipality  indebted  to  the  complainant,  without 
making  any  provision  for  the  payment  of  outstanding  indebtedness,  was 
unconstitutional  and  void,  still  it  must  be  admitted  that  the  very  act 
which  annulled  that  charter  annexed  all  the  territory  and  propert}'  of  the 
municipality  to  the  two  appellant  towns,  and  that  the}'  acquired  with 
that  the  same  power  of  taxation  over  the  residents  and  their  estates  that 
the}'  previously  possessed  over  the  estates  of  the  inhabitants  resident 
within  their  limits  before  their  boundaries  were  enlarged. 

Extinguished  municipal  corporations  neither  own  propei'ty,  nor  have 
they  any  power  to  levy  taxes  to  pay  debts.  Whatever  power  the  ex- 
tinguished municipality  had  to  levy  taxes  when  the  act  passed  annulling 
her  charter  terminated,  and  from  the  moment  the  annexation  of  her 
territory  was  made  to  the  appellant  towns,  the  power  to  tax  the  prop- 
erty transferred,  and  the  inhabitants  residing  on  it,  became  vested  in 
the  proper  authorities  of  the  towns  to  which  tiie  territor}^  and  jurisdic- 
tion were  by  that  act  transferred ;  from  which  it  follows  that  for  all 
practical  purposes  the  complainant  was  left  without  judicial  remed}'  to 
enforce  the  collection  of  the  bonds  or  to  recover  judgment  for  the 
amounts  they  represent. 

When  the  appellant  towns  accepted  the  annexation,  their  authorities 
knew,  or  ought  to  have  known,  that  the  extinguished  municipaht}' owed 
debts,  and  that  the  act  effecting  the  annexation  made  no  provision  for 
their  payment.  They  had  no  right  to  assume  that  the  annulment  of  the 
charter  of  the  old  town  would  have  the  effect  to  discharge  its  indebted- 
ness, or  to  impair  the  obligation  of  the  contract  held  by  its  creditors 
to  enforce  the  same  against  those  holding  the  territor}'  and  jurisdiction 
by  the  authorit}-  from  the  legislature  and  the  public  property  and  the 
power  of  taxation  previously  held  and  enjoyed  by  the  extinguished 
municipality. 

Express  provision  was  made  b}'  the  act  annulling  the  charter  of  the 
debtor  municipalit}'  for  annexing  its  territory  to  the  appellant  towns  ; 
and  when  the  annexation  became  complete,  the  power  of  taxation  pre- 
viousl}'  vested  in  the  inhabitants  of  the  annexed  territory  as  a  separate 
municipality  ceased  to  exist,  whetlier  to  pay  debts  or  for  an}^  other  pur- 
'  pose,  —  the  reason  being  that  the  power,  so  far  as  respected  its  future 
exercise,  was  transferred  with  the  territory  and  the  jurisdiction  over  its 
inhabitants  to  the  appellant  towns,  as  enlarged  b}'  the  annexed  terri- 
tor\' ;  from  which  it  follows,  unless  it  be  held  that  the  extinguishment  of 
the  debtor  municipality  discharged  its  debts  without  pa3'ment,  which 
the  Constitution  forbids,  that  the  appellant  towns  assumed  each  a  pro- 
portionate share  of  the  outstanding  obligations  of  the  debtor  town  when 
they  acquired  tlie  territory,  pul)lic  property,  and  municipal  jurisdiction 
over  every  thing  belonging  to  the  extinguished  municipality. 

Corporations  of  a  municipal  character,  such  as  towns,  are  usually  or- 
ganized in  this  country  by  special  acts  or  pursuant  to  some  general  State 
law  ;  and  it  is  clear  that  their  powers  and  duties  differ  in  some  important 


MOUNT   PLEASANT   V.   BECKWITH.  83 

particulars  from  the  towns  which  existed  in  the  parent  countr}'  before 
Wie  Revolution,  where  the}'  were  created  b}'  special  charters  from  the 
crown,  and  acquired  many  of  their  privileges  b}'  prescription,  without 
any  aid  from  Parliament.  Corporate  franchises  of  the  kind  granted 
during  that  period  partook  much  more  largel}-  of  the  nature  of  private 
corporations  than  do  the  municipalities  created  in  this  country,  and 
known  as  towns,  cities,  and  counties.  Power  exists  here  in  the  legisla- 
ture, not  only  to  fix  the  boundaries  of  such  a  municipality  when  incor- 
porated, but  to  enlarge  or  diminish  the  same  subsequently,  without  the 
consent  of  the  residents,  by  annexation  or  set-off,  unless  restrained  b}- 
the  Constitution,  even  against  the  remonstrance  of  ever^- property  holder 
and  voter  within  the  limits  of  the  original  municipality. 

Propert}'  set  off  or  annexed  may  be  benefited  or  burdened  bj-  the 
change,  and  the  liabilit}'  of  the  residents  to  taxation  may  be  increased 
or  diminished  ;  but  the  question,  in  every  case,  is  entirely  within  the 
control  of  the  legislature,  and,  if  no  provision  is  made,  every  one  must 
submit  to  the  will  of  the  State,  as  expressed  through  the  legislative  de- 
partment. Inconvenience  will  be  suffered  by  some,  while  others  will  be 
greatly  benefited  in  that  regard  by  the  change.  Nor  is  it  an}'  objection 
to  the  exercise  of  the  power  that  the  propert}'  annexed  or  set  off  will 
be  subjected  to  increased  taxation,  or  that  the  town  from  which  it  is 
taken  or  to  which  it  is  annexed  will  be  benefited  or  prejudiced,  unless 
the  Constitution  prohibits  the  change,  since  it  is  a  matter,  in  the  ab- 
sence of  constitutional  restriction,  which  belongs  wholly  to  the  legisla- 
ture to  determine.  Courts  everywhere  in  this  country  hold  that,  in  the 
division  of  towns,  the  legislature  may  apportion  the  burdens  between 
the  two,  and  may  determine  the  proportion  to  be  borne  by  each.  Sill 
V.  The  Village  of  Corninrj^  15  N.  Y.  297  ;  Mayor  v.  State^  ex  rel.  of 
the  Board  of  Police  of  Baltimore^  15  Md.  376  ;  City  of  Olney  v. 
Harvey^  50  111.  453  ;  Boroxigh  of  Dunmore's  Appeal^  52  Pa.  St.  374. 

Public  property  and  the  subordinate  rights  of  a  municipal  corpora- 
tion  are  within  the  control  of  the  legislature  ;  and  it  is  held  to  be  settled 
law  that,  where  two  separate  towns  are  created  out  of  one,  each,  in  the 
absence  of  any  statutory  regulation,  is  entitled  to  hold  in  severalty  the 
public  property  of  the  old  corporation  which  falls  within  its  limits. 
North  Hempsted  v.  Hernpsted,  2  Wend.  (N.  Y.)  109  ;  The  Hartford 
Bridge  Company  v.  East  Hartford^  16  Conn.  149,  171. 

Extensive  powers  in  that  regard  are  doubtless  possessed  by  the  legis- 
lature ;  but  the  Constitution  provides  that  no  State  shall  pass  any  "  law 
impairing  the  obligation  of  contracts,"  from  which  it  follows  that  the 
legislature,  in  the  exercise  of  any  such  power,  cannot  pass  any  valid 
law  impairing  the  right  of  existing  creditors  of  the  old  municipality. 
1  Dillon,  Municipal  Corp.  (2d  ed.),  sect.  41  ;  'Van  Hoffman  v.  City  of 
Qxiincy^  4  Wall.  535,  554  ;  Lee  County  v.  Rogers,  7  id.  181,  184  ;  Bictz 
V.  City  of  Mascatine,  8  id.  575,  583  ;  Furman  v.  Nichols  id.  44,  62. 

Where  a  municipal  corporation  has  the  power  to  contract  a  debt,  it 
h'ls,  says  Di.von,  C.  J.,  by  necessary  implication,  authority  to  resort  to 


84  MOUNT   PLEASANT   V.    BECKWITH. 

the  usual  mode  of  raising  money  to  pay  it,  which  undoubtedly  is  taxa- 
tion. /State  ex  rel.  Hasbrouck  v.  The  City  of  Milwaukee,  25  Wis. 
122,  133. 

Whenever  the  charter  of  a  cit}-,  at  the  time  of  the  issue  of  bonds, 
made  it  the  duty  of  the  city  authorities  to  levy  and  collect  the  amount, 
when  reduced  to  judgment,  like  other  city  charges,  th^  same  court  held 
that  a  subsequent  act  of  the  legislature  prohibiting  the  city  from  levying 
such  a  tax  would  be  repugnant  to  the  Constitution.  Soutter  v.  The 
City  of  Madison,  15  id.  30. 

State  control  over  the  division  of  the  territor}-  of  the  State  into  cities, 
towns,  and  districts,  unless  restricted  by  some  constitutional  limitation, 
is  supreme,  but  the  same  court  admits  that  it  cannot  be  exercised  to 
annul  another  regulation  of  the  Constitution.  Chandler' v.  Boston,  112 
Mass.  200 ;   6  Cush.  (Mass.)  580. 

Cities  or  towns,  whenever  the}'  engage  in  transactions  not  public  in 
their  nature,  act  under  the  same  pecuniary  responsibility  as  individuals, 
and  are  as  much  bound  b}*  their  engagements  as  are  private  persons,  nor 
is  it  in  the  power  of  the  legislature  to  authorize  them  to  violate  their 
contracts.  The  Western  Saving  Fund  Society  v.  The  City  of  Phila- 
deli)hia,  31  Pa.  St.  175,  185. 

Text-writers  concede  almost  unlimited  power  to  the  State  legislatures 
in  respect  t(j  the  division  of  towns  ;ui<l  the  alteration  of  their  boundaries, 
TriTt  they  all  agree  that  in  the  exercise  of  these  powers  they  cannot  de- 
feat llie  rights  of  cn;;ditors  nor  impair  the  obligation  Qf  a  valid  contract.. 
i  Dillon,  Municipal  Corp.,  sect.  128;  Blanchard  v.  Ulssell,  11  Ohio 
St.  96  ;  Lansing  v.  County  Treasurer,  1  Dill.  522,  528. 

Concessions  of  power  to  municipal  corporations  are  of  high  impor- 
tance ;  but  the}'  are  not  contracts,  and  consequently  are  subject  to 
legislative  control  without  limitation,  unless  the  legislature  oversteps 
the  limits  of  the  Constitution.  Layton  v.  New  Orleans,  12  La.  Ann. 
515. 

Bonds  having  been  issued  and  used  by  a  city  for  purchasing  land  for 
a  park,  which  was  i)ledged  for  the  payment  of  the  bonds,  held,  that  a 
subsequent  act  of  tlie  legislature  authorizing  a  sale  of  a  portion  of  the 
park,  free  of  all  liens  existing  by  virtue  of  the  original  act,  was  in  viola- 
tion of  the  Federal  Constitution,  as  impairing  the  obligation  of  contracts. 
Brooklyn  Park  Com.  v.  Armstrong,  45  N.  Y.  234,  247. 

Laws  passed  by  a  State  impairing  the  obligation  of  a  contract  are 
void,  and  if  a  State  cannot  pass  such  a  law,  it  follows  that  no  agency 
can  do  so  which  acts  under  the  State  with  delegated  authority.  Cooley, 
Const.  Lim.  (4th  ed.)  241  ;  Angell  &  Ames  on  Corp.  (9th  ed.),  sects. 
332,  333. 

Municipal  debts  cannot  be  paid  by  an  act  of  the  legislature  annulling 
the  charter  of  the  municipality,  and,  if  not,  then  the  creditors  of  such 
a  political  division  must  have  some  remedy  after  the  annulment  takes 
place.  Without  officers,  or  the  power  of  electing  such  agents,  a  munici- 
pal corporation,  if  it  can  be  so  called,  would  be  an  entity  very  difficult 


MOUNT    PLEASANT   V.    BECKWITH.  85 

to  be  subjected  to  judicial  process  or  to  legal  responsibility  ;  but  when 
the  entity  itself  is  extinguished,  and  the  inhabitants  with  its  territory 
and  other  property  are  transferred  to  other  municipalities,  the  sugges- 
tion that  creditors  may  pursue  their  remedy  against  the  original  con- 
tracting party  is  little  less  than  a  mockery.  Public  property,  with  the 
inhabitants  and  their  estates,  and  the  power  of  taxation,  having  been 
transferred  by  the  authority  of  the  legislature  to  the  appellants,  the 
principles  of  equity  and  good  conscience  require  that  inasmuch  as  they 
are,  and  have  been  for  nearly  twenty  years,  in  the  enjoyment  of  the 
benefits  resulting  from  the  annexation,  they  shall  in  due  proportions 
also  bear  the  burdens.     Ntto  Orleans  v.  Clark,  95  U.  S.  644,  654. 

Equitable  rules  of  decision  are  sufficiently  comprehensive  in  their  reach 
to  do  justice  between  parties  litigant,  and  to  overcome  every  difficulty 
which  can  be  suggested  in  this  case.  States  are  divided  and  subdivided 
into  such  municipalities,  called  counties,  cities,  towns,  and  school  dis- 
tricts, and  the  legislature  of  every  State  is  required  every  year  to  pass  laws 
modifying  their  charters  and  enlarging  or  diminishing  their  boundaries. 
Nor  are  the  questions  presented  in  this  case  either  new  in  principle  or 
difficult  of  application.  New  forms  are  given  to  such  charters  in  every 
day's  experience,  when  the  limits  of  an  old  corporation  are  changed  by 
annexation  of  new  territory,  or  portions  of  the  territory  of  the  old  munici- 
palit}'  are  set  off  and  annexed  to  another  town.  Both  corporations,  in 
such,  a  case  continue,  though  it  may  be  that  the  charters  are  much 
changed,  and  that  the  inhabitants  of  the  territory  annexed  or  set  off  fall 
under  different  officers  and  new  and  very  diverse  regulations.  Beckwith 
v.  City  of  Racine,  7  Biss.  142,  149. 

Pecuniary  burdens  may  be  increased  or  diminished  bv  the  change  ; 
but,  in  the  absence  of  express  provisions  regulating  the  subject,  it  will 
be  presumed  in  ever}'  case  where  both  municipalities  are  continued, 
that  the  outstanding  liabilities  of  the  same  remain  unaffected  by  such 
legislation.  Unlike  that  in  this  case,  the  charter  of  the  old  town  was 
vacated  and  annulled,  from  which  it  follows  that  the  same  principles  of 
iustice  require  that  the  appellant  towns,  to  which  the  territory,  propert}', 
and  inhabitants  of  the  annulled  municipality  were  annexed,  should  be- 
come liable  for  its  outstanding  indebtedness.  Decree  affirmed. 

Mr.  Justice  Miller,  with  whom  concurred  Mr.  Justice  Field  and 
Mr.  Justice  Bradley,  dissenting. 

I  am  of  opinion  that  it  requires  legislation  to  make  a  legal  obligation 
against  the  new  town,  and  make  the  apportionment  of  the  debt ;  and  I 
dissent  on  that  ground  from  the  judgment  and  opinion  of  the  court  in 
this  case. 


BREWIS   V.   CITY   OF   DULUTH. 


-^*-®yj>-'vrJCKL^    ouo^-ov-'v'VN.-ciXr    o33U  "^  ^•'^OLjL.ft.^ji 


-*-<»  V>-«>w.^_  BREWIS  V.    CITY  OF  DULUTH   AND  VILLAGE  OF 
'--^   ^^JUu^cld^.  DULUTH. 

-  '^^'~'^>->'v..^-a  VAvh-A.r-x.^     ^   1881.     3  McCrary  U.  S.  Circuit  Court  Reports,  219. 

_oJk    *^^^^^  '^"  ^'  Circuit  Court  for  District  of  Minnesota. 

'*~~*--^     In  equity.     Demurrer  to  bill  of  complaint. 
'^^^^^  This  suit  is  brought  against  the  city  of  Duluth  and  the  village  of 

*^-V.-<Mr>iv^  j)y^^|.jj  to  recover  the  coupons  overdue  upon  bonds  of  the  Cit}'  of  Duluth, 
0  ^*'^^-' "^-bs^  in  this  district.     A  demurrer  is  interposed  by  the  village  of  Duluth. 
'^^  \kL!U.^j_»      Gihnan  S  Clough^  for  demurrer. 
uL^  oj^-TdTj.  Williams  <&  Davidson,  contra. 

^„J^^,^i_^         Nelson,  District  Judge.     The  complainant  is  the  owner  of  certain 
jfT  ■   bonds  issued  under  an  act  of  the  legislature  of  Minnesota,  approved 

-.^  '  March  8, 1873,  authorizing  the  city  of  Duluth  to  fund  the  debt  previously 

Z"^]'''*''^-^  incurred  for  improving  the  harbor,  and  for  other  purposes.  The  bonds 
'^^""■^^^i-*.^^  were  payable  in  not  less  than  20  nor  more  than  30  years  from  the  date 
•"^^  Vs«9  of  their  issue,  and  bear  interest  at  the  rate  of  7  per  cent,  per  annum, 
''^■*--  Ajy^v  payable  semi-annually  in  the  city  of  New  York.  The  complainant  be- 
'*'^*"'-^^^  Vt  came  a  bona  fide  holder  of  the  bonds  and  coupons  previous  to  1875. 
><-ou^  c-dti.  ^^  appears  that  on  February  23,  1877,  the  legislature  of  the  state  of 
,jj]^  Minnesota  created  the  village  of  Duluth  out  of  a  part  of  the  territory 
of  the  city  of  Duluth,  under  an  act  entitled  "  An  act  to  create  the 
village  of  Duluth,  *  *  *  and  to  apportion  the  debts  of  the  city  of 
Duluth  between  itself  and  the  village  of  Duluth,  and  provide  for  the 
payment  thereof." 

This  act  carved  the  village  out  of  the  city  limits,  taking  and  embrac- 
ing in  the  village  all  the  business  part  of  the  city  and  business  houses, 
the  harbor,  railroad  depots  and  tracks,  nearl}-  all  the  dwelling-houses, 
all  the  population  except  about  100  inhabitants,  and  nineteen-twentieths 
of  all  the  taxable  property  ;  and  no  provision  was  made  for  the  pay- 
^  "^^V]n_o  ro^nt  of  the  debts  of  the  city  b}-  the  village  unless  creditors  would 
r    ,  ,     accede  to  the  terms  imposed  by  the  legislature  as  hereinafter  stated. 

^-J^^^^^^^^It  also  appears  that  on  February  28,  1877,  an  act  was  passed  entitled 
^^v)  "An  act  to  amend  the  act  entitled  an  act  to  incorporate  the  city  of 
Duluth,"  approved  March  5,  1870,  and  this  act  declared  that  the  ser- 
vice of  all  summons  and  process  in  suits  against  the  city  of  Duluth 
should  be  made  on  the  mayor  of  the  city,  and  that  service  made  on  any 
other  officer  should  not  be  valid  against  the  city.  It  also  provided  that 
the  term  of  the  office  of  maj'or  should  cease  on  the  following  April, 
^^^'**^^^*''-^JA  1877,  and  no  provision  was  made  for  the  election  of  a  successor  or  for 
oOl'^  -^  filling  a  vacancy  ;  that  no  taxes  should  be  levied  without  the  affirma- 
^N_  •  ,  "^^  live  vote  of  all,  to-wit,  four  aldermen  ;  and  since  the  passage  of  the 
^  y^^3^  act  there  have  never  been  four  aldermen  in  the  city  qualified  to  act. 

V  ^     There  is  a  section  authorizing  the  levy  of  taxes  by  the  county  of  St. 
Louis,  in  which  tlie  city  is  situated,  but  all  taxes  thus  levied  and  col- 


^ 


lectcd  must  be  paid  to  the  village  of  Duluth. 


BREWIS   V.    CITY    OF   DULUTH.  87 

On  the  facts  admitted  by  the  demurrer  the  complaiuant  is  entitled  to 
relief.  The  legislature  undoubtedly  had  the  right  to  create  the  village 
of  Duluth  out  of  the  territory  of  the  cit}',  and,  as  between  the  city  and 
the  village,  apportion  the  existing  indebtedness  ;  but  when  the  corpora- 
tion  which  created  the  debt  is  shorn  of  its  population  and  taxable  prop- 
erty to  such  an  extent  that  there  is  no  reasonable  expectation  of  its 
meeting  the  present  indebtedness,  and  it  is  unable  so  to  do,  the  credi- 
tors, at  least,  can  enforce  a  proportionate  share  of  their  obligations 
against  the  two  corporations  carved  out  of  one.  Both  are  liable  to  the 
extent  of  the  property  set  off  to  each  respectively. 

The  debt  of  the  cit}'  at  the  time  the  village  was  created  by  act  of 
February  23,  1877,  was  about  $400,000,  and  the  act  creating  the 
village  of  Duluth  authorized  an  apportionment  of  the  debts  as 
follows  : 

Section  3,  in  substance,  provides  that  after  one  year  from  February' 
23,  1877,  the  village  shall  become  jointly  liable  with  the  city  on  all 
bonds  issued  prior  to  the  passage  of  this  act,  unless  it  shall  within  the 
year  take  up  and  cancel,  as  hereinafter  provided,  $218,000  of  the 
evidence  of  indebtedness  outstanding  of  the  city,  provided  that  inter- 
est to  January'  1,  1878,  on  all  bonds  and  maturing  coupons  shall  be 
treated  and  regarded  as  part  of  said  evidence  of  outstanding  indebted- 
ness. 

Section  4  enacts  that  not  more  than  8100,000  of  village  6  per  cent. 
30-year  bonds  shall  be  issued  for  taking  up  outstanding  bonds  and 
orders  of  the  cit}'  of  Duluth  to  the  amount  of  $218,000,  and  interest 
thereon  to  January  1,  1870.  These  bonds  are  to  be  placed  in  the 
possession  of  the  judge  of  the  Eleventh  judicial  district  of  the  state  of 
Minnesota. 

Section  5  enacts  that  persons  holding  bonds,  matured  coupons,  or 
orders  of  the  city  of  Duluth  prior  to  the  passage  of  this  act  may  sur- 
render the  same  to  the  judge  of  the  district  court  for  exchange  for  the 
bonds  of  the  village  of  Duluth  ;  and  whenever  $218,000  has  been  sur- 
rendered, the  judge  shall  issue  to  the  persons  so  surrendering,  the  bonds 
of  the  village  of  Duhith  to  one-fourth  of  the  amount  so  surrendered, 
and  on  the  delivery  of  the  village  bonds  shall  cancel  the  amount  of 
cit}'  bonds  received  in  exchange. 

Other  sections  provide  for  annexation  of  more  land  from  the  cit}' 
limits. 

This  statute  interferes  with  the  rights  of  creditors.  The  obligations 
of  a  municipal  corporation  are  not  affected,  although  the  name  may  be 
changed  and  the  territory  increased  or  diminished,  if  the  new  organiza- 
tion embraces  substantially  the  same  territory  and  the  same  inhabitants. 
It  may  be  true  that  generally  creditors,  to  obtain  relief,  must  look  ex- 
clusively  to  the  corporation  creating  the  debt ;  but  when  a  state  of  facts 
exists  as  disclosed  here,  and  the  old  corporation  is  diminished  in  popu- 
ktion,  wealth,  and  territory  to  the  extent  admitted,  it  would  be  a 
mockery  of  justice  to  withhold  the  relief  asked. 


88 


MERIWETHER   V.   GARRETT. 


Without  at  this  time  considering  more  fully  the  question  presented, 
whether  the  several  acts  of  February  25,  1877,  and  February  28,  1878, 
impair  the  obligations  of  the  contract  between  the  city  of  Duluth  and 
its  creditors,  it  is  clear  to  my  mind  that  the  bill  on  its  face  containt? 
sufficient  equity  and  calls  for  an  answer. 

The  demurrer  is  overruled,  and  the  defendant  can  have  until  Jan- 
uary rule-day  to  answer. 

McCbary,  Circuit  Judge,  concurred.^ 


'A/v-«,a_u^ 


"'^J^S^    >^-<jONyN^-_    . 


'^^^-^j-JCKjfe^^  merIwether 


GARRETT. 

"^  M^\,>-XAj^,*-^^'^f^.l880.     102  U.  S.  472.2   %^ 

Appeal  from  U.  S.  Circuit  Court  for  Western  District  of  Tennessee. 

In  Equity.     The  original  bill  was  filed  against  the  city  of  Memphis, 

Jan.  28,  1879,  by  Garrett   et  als.  /  alleging,  in   substance,  that   the 

-^    -        plaintiffs  are  holders  of  overdue  bonds  and  coupons  of  the  cit}-,  upon 

"'^^^^^^^•^  much  of  which  indebtedness  they  had  secured  judgments  and  writs  of 

'  .  mandamus  to  compel  the  collection  thereof;  but  that  the  city  and  its 

oflBcials  have  for  years  failed  to  collect  the  taxes  assessed.     The  bill 

prays  for  the  appointment  of  a  receiver,  under  the  act  of  March  19, 

1877,  to  take  charge  of  the  city  assets,  including  bills  for   past   due 

taxes,  and  to  collect  all  outstanding   claims  due  to  the  cit}',  and   to 

settle  the  debts  of  the  city. 

B}-  an  act  passed  Jan.  29,  1879,  and  approved  Jan.  31,  1879,  the 
legislature  repealed  certain  specifically  named  acts  incorporating  Mem- 
phis and  amending  its  charter.  The  act  of  1879  also  provides  that  the 
charters  of  all  municipal  corporations  in  this  State  having  a  population 
of  35,000,  or  over,  (which  Memphis  had)  "  be  and  the  same  are  hereby 
repealed,  and  all  municipal  offices  held  thereunder  are  abolished."  The 
said  act  further  provided  that  "  the  po[)ulation  within  the  territorial 
limits  as  now  defined,  and  the  territory  of  all  municipal  corporations 
heretofore  governed  "  under  certain  specified  statutes  (which  are  hereby 
are  hereby  resolved  back  into  the  body  of  the  State,  and 


,<VXi 


ZjBkJ^,^^,^,^^  repealed) 


v>txOji  X  '  Upon  the  final  hearing,  at  June  term,  1882,  the  court,  from  evidence  given,  found 

^_^^'^^^/ that  the  city  of  Duluth  "is  now  in  a  condition  to  meet  its  tnatured  obligations,  and, 

.      v*^    prospectively,  all  others  as  they  mature."     The  court  said  that  the  taxable  ])roperty 
*-'~*-'^-^-^* — 3  in  the  city  "  has  already  increased  nearly  or  quite  fourfold,  and  is  advancing  rapidly." 
.-«j»^  >/%_*JC  "There  is,  therefore,  no  legal  or  ecjuitable  reason,  in  the  liglit  of  authority,  for  going 
V^  lieliind  the  legislative  apportionment."     The  court  reaffirmed  the  ijitrinsic  correctness 

^       V  •  "^  ^'^^  view  taken  in  the  above  opinion  given  upon  the  demurrer,  but  said  :  "  The  case, 

*'-''*^*^ifi>^l  as  now  before  the  court,  is  very  different  from  that  presented  on  demurrer."     The  bill 
<M-c^,^_,J^j\^  ''"^^  dismissed.     13  Fed.  Rep.  334.  —  Ed. 

\y^^'^f  ^  'he  statement  is  abridged,  adopting  largely  the  condensed  statement  in  the 
\g-  ^^'^-  opinion  of  FiicLD,  ,J.,  p.  .502-.'ilO.  The  dissenting  opinion  of  Strong,  J.,  is  omitted ;  also 
^^'*~'^  portions  of  the  opinion  of  Field,  J.  —  Fd. 


U*^ 


ns 


MERIWETHER   V.    GARRETT.  89 

all  offices  held  under  and  by  virtue  of  said  repealed  sections  are  hereby 
abolished  ;  and  all  power  of  taxation,  in  any  form  whatever,  heretofore 
vested  in  or  exercised  by  the  authorities  of  said  municipal  corporations 
by  virtue  of  any  of  the  acts  of  incorporation  hereinbefore  recited,  or 
otherwise,  is  for  ever  withdrawn  and  reserved  to  the  legislature  ;  and 
the  public  buildings,  squares,  promenades,  wharves,  streets,  alleys, 
parks,  fire-engines,  hose  and  carriages,  horses  and  wagons,  engine- 
houses,  engineer  instruments,  and  all  other  propert}',  real  and  personal, 
hitherto  used  b}'  such  corporations  for  municipal  purposes,  are  hereby 
transferred  to  the  custody  and  control  of  the  State,  to  remain  public 
property,  as  it  has  always  been,  for  the  uses  to  which  said  property 
has  been  hitherto  applied.  And  no  person  holding  office  under  and  b}' 
virtue  of  an}'  of  said  repealed  sections,  or  an}'  of  the  acts  above  recited, 
shall,  from  and  after  the  passage  of  this  act,  exercise  or  attempt  to 
exercise  any  of  the  powers  or  functions  of  said  office. 

On  the  same  day  with  the  passage  of  the  repealing  act,  the  legisla- 
ture passed  another  act  to  establish  taxing  districts  in  the  State,  and  to 
provide  the  means  for  their  local  government.  It  declared  that  the 
several  communities  embraced  in  the  territorial  limits  of  the  repealed 
corporations,  and  of  such  other  corporations  as  might  surrender  their 
charters  under  the  act,  were  created  taxing  districts  in  order  to  provide 
the  means  of  local  government  for  their  peace,  safety,  and  general  wel- 
fare ;  that  the  necessar}'  taxes  for  the  support  of  the  governments  thus 
established  should  be  imposed  directly  by  the  General  Assembl}-,  and 
not  otherwise ;  that  in  administering  the  affairs  and  providing  the 
means  of  local  government  the  following  agencies  and  instrumentalities 
were  established,  —  namely,  a  board  of  fire  and  police  commissioners; 
a  committee  on  ordinances  or  local  laws,  to  be  known  as  the  legislative 
council  of  the  taxing  district ;  a  board  of  health,  and  a  board  of  public 
works  ;  and  it  prescribed  in  detail  the  duties  and  powers  of  these  local 
agencies.  The  act  prohibited  the  commissioners  from  issuing  an\' 
bonds,  notes,  scrip,  or  other  evidences  of  indebtedness,  or  from  con- 
tracting for  work,  material,  or  services  in  excess  of  the  amount  levied 
for  them  for  that  year  ;  and  declared  that  no  propert}',  real  or  personal, 
held  by  them  for  public  use  should  ever  be  subject  to  execution,  attach- 
ment, or  seizure  under  any  legal  process  for  any  deT)t  created  by  them  ; 
that  all  taxes  due,  or  moneys  in  the  hands  of  tlie  county  trustee,  or  on 
deposit,  should  be  exempt  from  seizure  under  attachment,  execution, 
garnishment,  or  other  legal  process.  It  also  declared  that  no  writ  of 
mandamus  or  other  process  should  lie  to  compel  them  or  other  govern- 
ing agencies  to  levy  any  taxes,  and  that  neither  the  commissioners,  nor 
trustee,  nor  the  local  government  should  be  held  to  pay  or  be  liable  for 
any  debt  created  by  the  extinct  corporations,  and  that  none  of  the 
taxes  collected  under  the  act  should  ever  be  used  for  the  payment  of  any 
of  said  debts.  The  act  also  declared  that  all  the  property  previously  used 
by  the  corporations  for  purposes  of  government  was  transferred  to  the 
custody  and  control  of  the  board  of  commissioners  of  the  taxing  dis- 


90  MEKIWETHER   V.   GARRETT. 

tricts,  to  remain  public  property  for  tiie  uses  to  which  it  had  previously 
been  applied,  and  that  all  indebtedness  for  taxes  or  otherwise,  whether 
in  htigation  or  not,  due  to  the  extinct  municipalities,  should  vest  in  and 
become  the  property  of  the  State,  to  be  disposed  of  for  the  settlement 
of  their  debts  as  should  thereafter  be  provided  by  law. 

In  February,  1879,  the  plaintiffs  filed  an  amended  and  supplemental 
bill,  making  certain  officials  co-defendants,  and  alleging  that  the  above 
acts  of  Jan.  31,  1879,  were  unconstitutional.  Bills  were  also  filed  by 
other  judgment  creditors.  Feb.  12,  1879,  the  court  ordered  that  the 
several  causes  be  consolidated,  and  appointed  Latham  receiver.  The 
order  directs  the  receiver  (inter  alia)  to  take  possession  of  all  the  real 
and  personal  propert}-  of  the  city,  except  certain  property  used  for 
public  purposes ;  to  collect  rents  from  city  property  ;  and  to  collect 
unpaid  taxes. 

March  14,  1879,  the  legislature  passed  an  act,  providing,  as  to  the 
municipal  corporations  whose  charters  may  have  been  repealed,  that  the 
governor  "  shall  appoint  an  officer  for  such  extinct  corporations  respec- 
tively, to  be  known  as  a  receiver  and  back-tax  collector."  The  act 
required  said  officer  to  take  possession  of  all  books,  papers,  and  docu- 
ments pertaining  to  the  assessment  and  collection  of  taxes,  which  had 
been  levied  at  the  time  of  the  repeal  of  the  charters.  It  ordered  him  to 
file  a  bill  in  the  Chancery  Court  of  the  county  in  which  the  corporation 
was  situated,  in  the  name  of  the  State,  in  behalf  of  all  creditors  against 
all  its  delinquent  tax-payers,  and  provided  that  taxes  assessed  prior  to 
1875  might  be  settled  in  the  valid  indebtedness  of  the  extinct  munici- 
pality, whether  due  or  not,  and  that  the  receiver  should  receive  evi- 
dences of  such  indebtedness  at  certain  designated  rates.  It  also 
prohibited  him  from  coercing  payment  of  a  greater  sum  than  one-fifth 
of  the  taxes  in  arrears  annually,  so  as  to  distribute  the  whole  through 
five  equal  annual  instalments,  commencing  from  his  appointment  and 
qualification.  It  authorized  the  Chancery-  Court  to  enforce  all  liens 
upon  propert}'  for  the  payment  of  taxes,  and  to  order  all  sales  neces- 
sary for  their  collection  ;  and  to  settle  and  adjust  all  equities,  priorities, 
and  liens ;  and  to  give  to  the  defendants  and  creditors  all  the  relief 
which  might  be  given  if  there  were  as  many  separate  suits  as  there 
were  creditors  and  delinquent  tax-payers.  It  provided  that  the  taxes 
as  collected  should  be  paid  into  the  State  treasur}',  and  belaid  out  to 
parties  entitled  to  receive  them,  as  adjudged  by  the  Chancery  Court, 
upon  the  warrant  of  the  receiver,  countersigned  by  the  Chancellor.  It 
required  the  receiver,  in  paying  the  money  collected  into  the  treasury, 
to  distinguish  the  sources  whence  it  was  derived,  showing  the  amount 
from  each  special  and  general  tax,  so  that  the}'  might  be  kept  separate, 
and  be  paid  out  to  creditors  according  to  the  priority,  lien,  or  equity 
determined.  The  act  was  accompanied  with  a  proviso  that  it  should 
not  interfere  with  any  vested  rights  entitling  parties  to  a  speedy 
collection. 

Under  this  act,  Meriwothor  was  a])point('(l  by  the  governor  receiver 


MERIWETHER   V.    GARRETT.  91 

and  the  back-tax  collector  of  Memphis.  The  plaintiffs  subsequently 
amended  their  bill  by  making  Meriwether  a  defendant. 

To  the  bill,  as  consolidated  and  amended,  the  defendants  demurred. 
Upon  this  demurrer  several  questions  arose,  on  which  the  judges  of  the 
Circuit  Court  were  divided  in  opinion.  The  prevailing  opinion  of  the 
presiding  judge  being  against  the  demurrer,  it  was  overruled.  Judg- 
ment was  rendered  in  favor  of  plaintiffs.  The  decree  adjudged  that 
Latham,  the  receiver,  should  proceed  to  collect  the  assets  and  property 
of  the  city  (including  back-taxes)  in  the  manner  directed  by  the  previous 
order  of  the  court.  It  also  enjoined  Meriwether  from  attempting  to 
collect  or  interfere  with  the  assets  in  the  possession  of  the  said  receiver. 
And  the  decree  further  adjudged  that  all  the  property  within  the  limits 
of  the  territory  of  the  city  of  Memphis  was  liable  and  might  be  sub- 
jected to  the  payment  of  all  the  debts  of  the  cit}',  and  that  such  liability 
would  be  enforced  thereafter,  from  time  to  time,  in  such  manner  as  the 
court  might  direct. 

From  the  decree  the  defendant  appealed. 

J'oseph  B.  Heiskell^  George  Davitt,  and  Minor  Meriwether^  for 
appellants. 

William  M.  Randolph^  contra. 

Mr.  Chief  Justice  Waite  announced  the  conclusione  reached  by  the 
court  as  follows  :  — 

1.  Property  held  for  public  uses,  such  as  pnolic  buildings,  streets, 
squares,  parks,  promenades,  wharves,  landing-places,  fire-engines,  hose 
and  hose-carriages,  engine-houses,  engineering  instruments,  and  gener- 
ally everything  held  for  governmental  purposes,  cannot  be  subjected  to 
the  payment  of  the  debts  of  the  cit}'.  Its  public  character  forbids  such 
an  appropriation.  Upon  the  repeal  of  the  charter  of  the  citj',  such 
property  passed  under  the  immediate  control  of  the  Mate,  the  power 
once  delegated  to  the  city  in  that  behalf  having  been  withdrawn. 

2.  The  private  property  of  individuals  within  the  limits  of  the  terri- 
tory  of  the  city  cannot  be  subjected  to  the  payment  of  the  debts  oflHe 
city,  except  through  taxation.  The  doctrine  of  some  of  the  States, 
that  such  property  can  be  reached  directly  on  execution  against  the 
municipalit}',  has  not  been  generally  accepted. 

3.  The  power  of  taxation  is  legislative,  and  cannot  be  exercised 
otherwise  than  under  the  authority  of  the  legislature. 

4.  Taxes  levied  according  to  law  before  the  repeal  of  the  charter, 
other  than  such  as  were  levied  in  obedience  to  the  special  requirement 
of  contracts  entered  into  under  the  authority  of  law,  and  such  as  were 
levied  under  judicial  direction  for  the  payment  of  judgments  recovered 
against  the  city,  cannot  be  collected  through  the  instrumentality  of  a 
court  of  chancery  at  the  instance  of  the  creditors  of  the  city.  Such 
taxes  can  only  be  collected  under  authority  from  the  legislature.  If  no 
such  authority  exists,  the  remedy  is  by  appeal  to  the  legislature,  which 
alone  can  grant  relief.     Whether  taxes  levied  in  obedience  to  contract 


92  MEKIWETHER   V.    GAERETT. 

obligations,  or  under  judicial  direction,  can  be  collected  through  a 
receiver  appointed  by  a  court  of  chancery,  if  there  be  no  public  officer 
charged  with  authority  from  the  legislature  to  perform  that  dutj-,  is  not 
decided,  as  the  case  does  not  require  it. 

5.  The  receiver  and  back-tax  collector  appointed  under  the  authority 
of  the  act  of  March  13,  1879,  is  a  public  officer,  clothed  with  authority 
from  the  legislature  for  the  collection  of  the  taxes  levied  before  the 
repeal  of  the  charter.  The  funds  collected  b}'  him  from  taxes  levied 
under  judicial  direction  cannot  be  appropriated  to  an}'  other  uses  than 
those  for  which  they  were  raised.  He,  as  well  as  any  other  agent  of 
the  State  charged  with  the  dut}-  of  their  collection,  can  be  compelled  by 
appropriate  judicial  orders  to  proceed  with  the  collection  of  such  taxes 
hy  sale  of  property  or  b}^  suit  or  in  any  other  way  authorized  by  law, 
and  to  apply  the  proceeds  upon  the  judgments. 

6.  The  bills  in  this  case  cannot  be  amended  so  as  to  obtain  relief 
against  the  receiver  and  back-tax  collector,  without  making  an  entirely 
new  suit.     The}'  were  not  framed  with  a  view  to  any  such  purpose. 

7.  The  decree  of  the  court  below  is  reversed. 

8.  The"  cause  is  remanded,  with  instructions  to  dismiss  the  bills, 
without  prejudice.  If,  on  the  settlement  of  the  accounts  of  the  receiver 
herein,  it  shall  be  found  he  has  any  money  in  his  hands  collected  on 
taxes  levied  under  judicial  direction  to  pay  judgments  in  favor  of  any 
persons  who  have  become  parties  to  this  suit,  an  order  may  be  made 
directing  its  appropriation  to  the  payment  of  such  judgment. 

Upon  the  first,  second,  third,  and  fifth  of  these  propositions  the  judg- 
ment of  the  court  is  unanimous.  Upon  the  fourth,  sixth,  seventh,  and 
eighth  it  is  by  a  majority  only. 

Mr.  Justice  Field.  Mr.  Justice  Miller,  Mr.  Justice  Bradley,  and 
myself  concur  in  the  judgment  rendered,  but,  as  the  judgment  is  not 
accompanied  by  a  statement  of  the  reasons  on  which  it  is  founded,  I 
proceed  to  state  tliose  which  have  controlled  us. 

[After  stating  the  case.] 

This  decree  is  manifestly  erroneous  in  its  main  provisions.  It  pro- 
ceeds upon  the  theory  that  the  property  of  every  description  held  by 
the  municipality  at  the  time  of  its  extinction,  whether  held  in  its  own 
right  or  for  public  uses,  including  also  in  that  designation  its  uncol- 
lected taxes,  were  chargeable  with  the  payment  of  its  debts,  and  con- 
stituted a  trust  fund,  of  which  the  Circuit  Court  would  take  possession 
and  enforce  the  trust ;  and  that  the  private  property  of  the  inhabitants 
of  the  city  was  also  liable,  and  could  be  subjected  by  the  Circuit  Court 
to  the  payment  of  its  debts.  In  both  particulars  the  theory  is  radically 
wrong. 

The  right  of  the  State  to  repeal  the  charter  of  Memphis  cannot  be 
questioned.  Municipal  corporations  are  mere  instrumentalities  of  the 
State  for  the  more  convenient  administration  of  local  government. 
Their  powers  are  such  as  the  legislature  may  confer,  and  these  may  be 


MERIWETHER   V.   GARRETT,  93 

enlarged,  abridged,  or  entire!}'  withdrawn  at  its  pleasure.  This  is 
common  learning,  found  in  all  adjudications  on  the  subject  of  municipal 
bodies  and  repeated  by  text-writers.  There  is  no  contract  between 
the  State  and  the  public  that  the  charter  of  a  city  shall  not  be  at  all 
Times  subject  to  legisTatTve  ~coirErolT_~^Afl  "p^sons  who^deai  with  such 
"Bodies  ai'e  conclusively  presumed  to  act  upon  knowledge  of  the  power 
of  the  legislatiTFe.  There  is  no  such  thing  as  a  vested  rightHEeld  by 
any  individual  in  the  grant  of  legislative  power  to  them.  United 
States  V.  Railroad  Co.,  17  Wall.  322;  Commissioners  v.  Lucas,, 
Treasurer,  93  U.  S.  108  ;  People  v.  Morris,  13  Wend.  (N.  Y.)  325  ; 
Philadelphia  v.  Fox,  64  Pa.  St.  169  ;  Montpelier  v.  East  Montpelier, 
29  Vt.  12;  Angell  &  Ames,  Corp.  (10th  ed.),  sect.  31;  Dill.  Mun. 
Corp.,  sect.  30;  Coole}-,  Const.  Lim.  192,  193.  By  the  repeal  the 
legislative  powers  previous!}-  possessed  b}'  the  corporation  of  Memphis 
reverted  to  the  State.  A  portion  of  them  the  State  immediateh' 
vested  in  the  new  government  of  the  taxing  district,  with  many  restric- 
tions on  the  creation  of  indebtedness.  A  portion  of  them  the  State 
retained  ;  it  reserved  to  the  legislature  all  power  of  taxation.  It  thus 
provided  against  future  claims  from  the  improvidence  or  recklessness 
of  the  new  government.  The  power  of  the  State  to  make  this  change 
of  local  government  is  incontrovertible.  Its  subsequent  provision  for, 
the  collection  of  the  taxes  of  the  corporation  levied  before  the  repeal  of 
its  charter,  and  the  appropriation  of  the  proceeds  to  the  payment  of  its 
debts,  remove  from  the  measure  any  imputation  that  it  was  designed  to 
enable  the  city  to  escape  from  its  just  liabilities. 

But  while  the  charter  of  a  municipal  corporation  ma}'  be  repealed  at 
the  pleasure  of  the  legislature,  where  there  is  no  inhibition  to  its  action 
in  the  Constitution  of  the  State,  the  lawful  contracts  of  the  corporation, 
made  whi^lst  it  was  in  existence,  may  be  subsequently  enforced  against 
t?roperty  held  l)y  it,  in  its  own  right,  as  hereafter described,  at  the  tiino" 
of  the  repeal.  In  this  respect  its  position  is  not  materially  different 
from  that  of  a  private  individual,  whose  property  must,  upon  his 
decease,  go  to  the  satisfaction  of  his  debts  before  those  who  succeed  to 
his  rights  can   share  in  its  distribution. 

[As  to  the  language  used  in  Broughton  v.  Pensacola,  93  U.  S.  266, 
p.  268.]  It  means  that  whatever  property  a  municipal  corporation  holds 
subject  to  the  payment  of  its  debts,  will,  after  its  dissolution,  be  so 
administered  and  applied  by  a  court  of  equity. 

What,  then,  is  the  property  of  a  municipal  corporation,  which,  upon  ~) 
jts  dissolution,  a  court  of  eqinty  wUl  lay  bold  oFand  apply  to  thepay- 
ment  of  its  debts?  We  answer,  first,  that  it  is  not  property  held  b;g 
the  corporation  in  trust  for  a  private  charity,  for  in  such  property  the 
corporation  possesses  no  interest  for  its  own  uses  ;  and,  secondly,  that 
it  is  not  i)rc)perty  heIcLjn_trust  for  the  public,  for  of  such  property  the 
corporation  is  the  mere  agent  of  the  State      In  its  streets,  wharvesT 


94  MERIWETHEK   V.    GARRETT. 

cemeteries,  hospitals,  court-houses,  and  other  public  buildings,  the  cor- 
poratiou  has  no  proprietarj'  rights  distinct  from  the  trust  for  the  public. 
It  holds  them  for  public  use,  and  to  no  other  use  can  they  be  appropri- 
ated without  special  legislative  sanction.  It  would  be  a  perversion  of 
that  trust  to  applj'  them  to  other  uses.  The  courts  can  have  nothing  to 
do  with  them,  unless  appealed  to  on  behalf  of  the  public  to  prevent 
their  diversion  from  the  public  use.  The  dissolution  of  the  charter  does 
not  divest  the  trust  so  as  to  subject  property  of  this  kind  to  a  liability 
from  which  it  was  previously'  exempt.  Upon  the  dissolution,  the  prop- 
ertj"  passes  under  the  immediate  control  of  the  State,  the  agency  of  the 
corporation  then  ceasing.  2  Dillon,  Mun.  Corp.,  sects.  445,  446 ; 
Schaffer  v.  Cadwallader,  36  Pa.  St.  126  ;  City  of  Davenport  v.  Peoria 
Maritie  &  Fire  Insurance  Co.,  17  Iowa,  276;  Askins  v.  Common- 
wealth, 1  Duv.  (Ky.)  275 ;  The  President,  <£ic.  v.  City  of  Indian- 
apolis, 12  Ind.  620. 
^  ^vv-»-  In  tije   third  place,  we  say  that   taxes   previously  levied,  but   not 

^■^^^i'  collected  on  the  dissolution  of  the  corporation,  do  not  constitute  its 
k-jP'^'^  property_;  and  in  the  absence  of  statutor}'  authorit}-  thgy  cannot  be 
V  subsequently  collected  by  a  court  of  equit}'  through  olHcers  of  its  own 
<o  ^njcjj^.  appointment,  and  applied  to  the  payment  of  the  i^rt^/Ht^^nra  nf  fj^c.  oq^. 
j^oration^  Taxe^^areno^debts.  It  was  so  held  b}'  this  court  in  the 
\  case  of  Oregon  v.  La?ie  County,  reported  in  7th  Wallace.  Debts  are 
obUgaXions^for  the  jja^-ment  of  money  founded  upon  contract,  express^ 
or^implied.  Taxes  are  imposts  levied  for  the  support  of  the  govern- 
ment,  or  for  some  special  purpose  authorized  by^t.  The  consent  of 
the  tax-pa^'er  is  not  necessary  to  their  enforcement  They  operate  in 
invitum.  Nor  is  their  nature  affected  by  the  fact  that  in  some  States 
—  and  we  believe  in  Tennessee  —  an  action  of  debt  may  be  instituted 
for  their  recover3\  The  form  of  procedure  cannot  change  their  char- 
acter. City  of  Augusta  v.  North,  57  Me.  392  ;  City  of  Camden  v. 
Allen,  2  Dutch.  (N.'j.)  398  ;  Perry  v.  Washburn,  20  Cal.  318.  Nor 
are  thev  different  when  levied  under  writs  of  mandamus  for  the  pay- 
ment of  judgments,  and  when  levied  for  the  same  purpose  by  statute. 
The  levy  in  the  one  case  is  as  much  by  legislative  authority  as  in  the 
other.  The  writs  of  mandamus  onh'  require  the  officers  of  assessment 
and  collection  to  obey  existing  law.  In  neither  case  are  the  taxes  liens 
upon  property  unless  made  so  by  statute.  Philadelphia  v.  Greble, 
38  Pa.  St.  339  ;  Howell  v.  Philadelphia,  id.  471  ;  2  Dillon,  Mun.  Corp., 
sect.  659.  Levied  only  by  authority  of  the  legislature,  they  can  be 
altered,  postponed,  or  released  at  its  pleasure.  A  repeal  of  the  law, 
under  which  a  tax  is  levied,  at  any  time  before  the  tax  is  collected, 
generally  puts  an  end  to  the  tax,  unless  provision  for  its  continuance  is 
made  in  the  repealing  act,  though  the  tax  may  be  revived  and  enforced 
by  subsequent  legislation.  We  say  generally,  for  there  are  some 
exceptions,  where  the  tax  provided  is  so  connected  with  a  contract,  as 
the  inducement  for  its  execution,  that  the  courts  will  hold  the  repeal  of 
the  law  to  be  invalid  as  impairing  the  obligation  of  the  contract.     It  is 


MERIWETHEK   V.   GARRETT.  95 

not  of  such  taxes,  constituting  the  consideration  of  contracts,  that  we 
are  speaking,  but  of  ordinary  taxes  authorized  for  the  support  of  gov- 
ernment, or  to  meet  some  special  expenditure  ;  and  these,  until  col- 
lected, —  being  mere  imposts  of  the  government,  created  and  continuing 
onl}'  by  the  will  of  the  legislature,  —  have  none  of  the  elements  of 
property  which  can  be  seized  like  debts  by  attachment  or  other  judicial 
process  and  subjected  to  the  payment  of  creditors  of  the  dissolved  cor- 
poration. They  are  in  no  proper  sense  of  the  term  assets  of  the  cor- 
poration. They  are  only  the  means  provided  for  obtaining  funds  to 
support  its  government  and  pay  its  debts,  and  disappear  as  such  means 
with  the  revocation  of  the  charter,  except  as  the  legislature  may  other- 
wise provide.  "When  they  are  collected,  the  moneys  in  the  hands  of  the 
collecting  officer  may  be  controlled  by  the  process  of  the  courts,  and 
applied  by  their  direction  to  the  uses  for  which  the  taxes  were  levied  ; 
but  until  then  there  is  nothing  in  existence  but  a  law  of  the  State  im- 
posing certain  charges  upon  persons  or  property,  which  the  legislature 
may  change,  postpone,  or  release,  at  anj'  time  before  they  are  enforced. 
So  long  as  the  law  authorizing  the  tax  continues  in  force,  the  courts 
ma}-,  b}'  mandamus,  compel  the  officers  empowered  to  levy  it  or 
charged  with  its  collection,  if  unmindful  and  neglectful  in  the  matter, 
to  proceed  and  perform  their  duty  ;  but  when  the  law  is  gone,  and  the 
office  of  the  collector  abolished,  there  is  nothing  upon  which  the  courts 
can  act.  The  courts  cannot  continue  in  force  the  taxes  levied ,^  nor  lev^ 
new  taxes  for  the  payment  of  the  debts^of  jthe  coi:poratjoij.  The  levy; 
ing  of  taxes  is  not  a  judicial_act.  It  has  no  elements  of  one.  It  is  a 
high  act  ofsovereignty,  to  be  performed  onh'  by  the  legislature  upon 
considerations  of  polic}',  necessity,  and  the  public  welfare.  In  the  dis- 
tribution of  the  powers  of  government  in  this  country  into  three  depart- 
ments, the  power  of  taxation  falls  to  the  legislative.  It  belongs  to  that 
department  to  determine  what  measures  shall  be  taken  for  the  public 
welfare,  and  to  provide  the  revenues  for  the  support  and  due  adminis- 
tration of  the  government  throughout  the  State  and  in  all  its  sub- 
divisions. Having  the  sole  power  to  authorize  the  tax,  it  must  equally 
possess  the  sole  power  to  prescribe  the  means  by  which  the  tax  shall  be 
collected,  and  to  designate  the  officers  through  whom  its  will  shall  be 
enforced. 

It  is  the  province  of  the  courts  to  decide  causes  between  parties, 
and,  in  so  doing,  to  construe  the  Constitution  and  the  statutes  of  the 
United  States,  and  of  the  several  States,  and  to  declare  the  law,  and, 
when  their  judgments  are  rendered,  to  enforce  them  by  such  remedies 
as  legislation  has  prescribed,  or  as  are  allowed  by  the  established  prac- 
tice. When  they  go  beyond  this,  they  go  outside  of  their  legitimate 
domain,  and  encroach  upon  the  other  departments  of  the  government ; 
and  all  will  admit  that  a  strict  confinement  of  each  department  within 
its  own  proper  sphere  was  designed  by  the  founders  of  our  government, 
and  is  essential  to  its  successful  administration. 

[After  referring  to  Bees  v.  Watertown,  19  Wallace,  107,  116;  and 


96 


MERIWETHER   V.    GARRETT, 


ETetJie  v.  Zevee  Com'rs  of  New  Orleans,  1  Woods,  247,  and  19  Wal- 
lace, 655,]  These  authorities  —  and  many  others  to  the  same  purport 
might  be  cited  —  are  sufficient  to  support  what  we  have  said,  that  the 
power  to  lev}-  taxes  is  one  which  belongs  exclusivch"  to  the  legislative 
depaftmeiit.  and  Trdm  that  it  necessarily  follows  that  tlie  regulation 
ana  control  of  all  the  agencies  by  which  taxes  are  collected  must  belong 

tstt: 

Vyhen  creditors  are  unable  to   obtain   payment  of  their  judgments 
V.     (  against  municipal  bodies  by  execution,  tbej'  can  proceed  by  mandamus 
X^'-euut^.against  the  municipal  authorities  to  compel  them  to  levy  the  necessary 
tax  for  that  purpose,  if  such  authorities  are  clothed  by  the  legislature 
with  the  taxing  power,  and  such  tax,  when  collected,  cannot  be  diverted, 
to  other  uses  ;  but  if  those  authorities  possess  no  such  power,  or  their 
offices  have  been  abolished  and  the  power  withdrawn,  the  remedy  of 
the _cr editors  is  l)y  an  appeal  to  tlie  legislature,  which  alone  can  give 
|hem  relief.     No  Fcdcial  court,  eitlior  on   its  law  or  equit}*  side,  has 
an}'  inherent  jurisdiction  to  la}-  a  tax  for  any  purpose,  or  to  enforce  a 
tax   already  levied,   except   through    the    agencies    provided    by   law. 
«^rxAA/vsst^^  However  urgent  the  appeal  of  creditors  and  the  apparent  hopelessness 
'  ^^*'1^'%*«~X  of  their  position  without  the  aid  of  the  Federal  court,  it  cannot  seize 
the  power  which  belongs  to  the  legislative  department  of  the  State  and 
wield  it  in  their  behalf 

To  return  to  the  question  propounded  :  what  is  thepropert}'  of  a 


-•■V-- 


municipal  corporation  which,  on  its  dissolution,  the  courts  can  reach 
and  appl}'  to  the  pa3-ment  of  its  debts  ? 

We  answer,  it  is_tti&-pyiyat(rp"roperty  of  the  corporation,  that  is,  such 
s  it  held  in   its  own  right  for  profit  or  as  a  source  of  revenue,  not 
barged  with  any  public  trust  or  use,  and  funds  in  its  possession  unap^ 
propriated  to  any  specific  purpose.     In  this  respect  the  position  of  the 
extinct  corporation  is  not  dissimilar  to  that  of  a  deceased  individual ;  it 
is  only  such  property  as  is  possessed,  freed  from  an}-  trust,  general  or 
special,  which  can  go  in  liquidation  of  debts. 
'""""^  The  decree  of  the  Circuit  Court  proceeding  upon  a  different  theory 
of  its  control  over  the  uncollected  taxes  of  the  repealed  corporation, 
and  of  the  property  which  could  be  applied  to  the  payment  of  its  debts, 
cannot  be  maintained. 

On  another  ground,  also,  the  decree  is  equally  untenable.  It  adjudges 
that  "  all  the  property  within  the  limits  of  the  territory  of  the  city  of 
Memphis  is  liable,  and  may  be  subjected  to  the  payment  of  all  the 
debts"  for  wliich  the  suits  are  brought,  and  that  "such  lial)ility  shall 
be  enforced  thereafter,  from  time  to  time,  in  such  manner  "  as  the  court 
may  direct. 

In  no  State  of  the  Union,  outside  of  New  England,  does  the  doctrine 
obtain  that  the  private  property  of  individuals  within  the  limits  of  a 
municipal  corporation  can  be  reached  by  its  creditors,  and  subjected  to 
the  payment  of  their  demands.  In  Massachusetts  and  Connecticut,  and 
perhaps  in  other  States  in  New  England,  the  individual  liability  of  the 


MERIWETHER  V.   GARRETT.  97 

inhabitants  of  towns,  parishes,  and  cities,  for  the  debts  of  the  latter,  is. 
maintained,  and  executions  upon  judgments  issued  against  them  can  be- 
enforced  against  the  private  property  of  the  inhabitants.  But  this  doc- 
trine is  admitted  by  the  courts  of  those  States  to  be  peculiar  to  their 
jurisprudence,  and  an  exception  to  the  rule  elsewhere  prevailing.  ^  _ 
Elsewhere  the  private  property  of  the  inhabitants  of  a  municipal  bodyV^^  -^^^ 


cannot  be  subjected  to  tlic  payment  of  its  debts,  except  l)y  way  of  la^Q'^"^^'^-**-^ 
ation  ;  but  taxes,  as  wu  linvo  already  said,  can  only  Ik;  1c\  led  by  '''J^isl^A''-^^'^^^^^-- \ 
fl^autTTority.  'i'hepcjwer  of  LaxaCIuTrTs~uot  one  uf  the  fnnctions  uf  the  '^'^'■^^^ '<^v 
judiciary  ;  aruFwhatever  authority  the  States  ma}  .  midrr  llirii  cons^F-^'*'^  • ,  SLt^' 
iULlMs,  (imil^l' ifpbrrspccial  tribunals"  of  their  own,  the  Federal  courts  \^W&^^■i^^ 
(JUllllUL   bV  MsJii   of  it   take   any  additional  jpowers  which_are,  not,)^*'-^^'^^*^^  -v 

"  [After  quoting  from  Bees  v.   Watertoicn,  19  Wallace,  107,  p.  122.]  ^■''^^'^^Uy^ 

It  is  pressed  upon  us  with  great  earnestness  by  counsel,  that  unless 
the  Federal  courts  come  to  the  aid  of  the  creditors  of  Memphis,  and 
enforce,  through  their  own  officers,  the  taxes  levied  before  the  repeal  of 
its  charter,  they  will  be  remediless.  But  the  conclusion  does  not  follow. 
The  taxes  levied  pursuant  to  writs  of  mandamus  issued  by  the  Circuit 
Court  are  still  to  be  collected,  the  agency  only  for  their  collection 
being  changed.  The  receiver  appointed  by  the  governor  has  taken  the 
place  of  the  collecting  officers  of  the  city.  The  funds  received  by  him 
upon  the  special  taxes  thus  levied  cannot  be  appropriated  to  any  other 
uses.  The  receiver,  and  any  other  agent  of  the  State  for  the  collec- 
tion, can  be  compelled  b}-  the  court,  equall}'  as  the  former  collecting 
officers  of  the  city,  to  proceed  with  the  collection  of  such  taxes  by  the 
sale  of  propert}'  or  b}'  suit,  or  in  any  other  waj-  authorized  b}'  law,  and 
to  appl}-  the  proceeds  upon  the  judgments.  If  relief  is  not  thus  afforded 
to  the  creditors,  they  must  appeal  to  the  legislature.  We  cannot  pre- 
sume that  the  appeal  will  be  in  vain.  We  cannot  sa}'  that  on  a  proper 
representation  they  will  not  receive  favorable  action. 

It  is  certainly  of  the  highest  importance  to  the  people  of  every  State 
that  it  should  make  provision,  not  merely  for  the  payment  of  its  own 
indebtedness,  but  for  the  payment  of  the  indebtedness  of  its  different 
municipalities.  Hesitation  to  do  tliis  is  weakness  ;  refusal  to  do  it  is 
dishonor.  Infidelity  to  engagements  causes  loss  of  character  to  the 
individual ;  it  entails  reproach  upon  the  StSite. 

The  Federal  judiciary-  has  never  failed,  so  far  as  it  was  in  its  power,"\i -"^-t^-  oXI. 
to  compel  the  performance  of  all  lawful  contracts,  whether  of  the  indi- /  ^-^vjux^^^ 
vidual,  or  of  the  municipality,  or  of  the  State.  It  has  unhesitatingly  y 
brushed  aside  all  legislation  of  the  State  impairing  their  oliligation. 
When  a  tax  has  been  authorized  b}'  law  to  meet  them,  it  has  compelled 
the  officers  of  assessment  to  proceed  and  lev}'  the  tax,  and  the  officers 
of  collection  to  proceed  and  collect  it,  and  appl}'  the  proceeds.  In 
some  instances,  where  the  tax  was  the  inducement  and  consideration  of 
the  contract,  all  attempts  at  its  repeal  have  been  held  invalid.  But  this 
has  been  the  limit  of  its  power.     It  cannot  make  laws  when  the  State 

7 


98  MOBILE   V.    WATSON. 

refuses  to  pass  them.  It  is  itself  but  the  servant  of  the  law.  If  the 
State  will  not  levy  a  tax,  or  provide  for  one,  the  Federal  judiciary  can- 
not assume  the  legislative  power  of  the  State  and  proceed  to  levy  the 
tax.  If  the  State  has  provided  incompetent  officers  of  collection,  the 
Federal  judiciary  cannot  remove  them  and  put  others  more  competent 
in  their  place.  If  the  State  appoints  no  officers  of  collection,  the  Fed- 
eral judiciary  cannot  assume  to  itself  that  duty.  It  cannot  take  upon 
itself  to  supply  the  defects  and  omissions  of  State  legislation.  It  would 
ill  perform  the  duties  assigned  to  it  by  assuming  power  properly  belong- 
ing to  the  legislative  department  of  the  State. 

[Mr.  Justice  Strong,  with  whom  concurred  Mr.  Justice  Swayne  and 
Mr.  Justice  Harlan,  delivered  an  opinion  dissenting  from  the  action 
of  the  majority  of  the  court  in  reversing  the  decree  of  the  court  below 
and  ordering  a  dismissal  of  the  complainants'  bill. 

One  of  his  positions  was,  that  the  levy  of  a  tax  is  a  verj'  distinct 
thing  from  the  collection  of  a  tax  ^IreMy  levied.  The  levy  is  gener- 
ally  a  legislative  or  a  quasi-judicial  act.  The  collection  of  a  tax  after  it 
jiasjbeen  levie_d  is^Ji  ministftrial  a.o.t,  which  a  court  has  power  to  enforce. 

His  opinion  concludes  thus  : 

I  think  the  decree  should  be  modified  by  striking  out  so  much  of  it 
as  subjects  to  the  payment  of  the  debts  of  the  city  the  propertj'  held 
exclusively  for  public  uses,  and  so  much  as  subjects  to  such  payment 
the  private  property  of  all  persons  within  the  city's  territorial  limits. 

Thus  modified,  I  think  the  decree  should  be  affirmed.]^ 


^Ay8Sr>^    ^L_9-X^  - 


MOBILE  V.  WATSON. 
MOBILE  V.  UNITED  STATES,  ex  rel.  WATSON. 

1886.     116  U.  S.  289.2 

Error  to  U.  S.  Circuit  Court  for  Southern  District  of  Alabama. 

The  object  of  the  first  of  these  suits  was  the  recovery  of  a  judgment 
for  money,  and  of  the  second  the  enforcement,  b}'  the  writ  of  manda- 
mus, of  the  judgment  recovered  in  the  first.     They  were  argued  as  one 

1  In  Luekrman  v.  Taxing  District  of  Shelby  County,  A.  D.  1879,  2  Lea,  Tenn.  425,  a 
majority  of  the  Supreme  Court  of  Tennessee  held,  tliat  the  charter  of  Memphis  had 
been  constitutionally  repealed,  and  also  that  tlie  establishment  of  the  Taxing  District 
was  constitutional.  In  O'Connor  v.  Memphis,  a.  d.  1881,  6  Lea,  Tenn.  730,  (where  scire 
facias  was  issued  requiring  the  Taxing  District  of  Shelby  County  to  show  cause  why 
the  suit  should  not  bo  revived  against  it,)  a  majority  of  the  Supreme  Court  of  Tennessee 
held,  "  that  tlie  Taxing  District  of  Shelby  County  is  so  far  the  successor  of  the  late 
corporation  of  the  city  of  Memphis,  or  the  same  corporation  under  a  new  name,  that 
a  suit  pending  against  the  old  corporation  may  be  revived  against  the  new,  and  prose- 
cuted to  juiignient."  Tlie  court  did  not  decide  as  to  the  creditor's  remedy  for  collect- 
ing his  judgment.  —  Ed. 

*    Statement  abridged.     Argument  and  part  of  opinion  omitted.  —  Eo. 


MOBILE   V.    WATSON.  9S 

case.  In  the  first  case  Henry  "Watson,  the  defendant  in  error,  was  the 
plaintiff  in  the  Circuit  Court.  He  brought  his  action  against  the  Port 
of  Mobile  to  recover  the  principal  money  due  on  certain  bonds  issued 
by  the  City  of  Mobile,  under  its  corporate  name.  .  .  . 

By  the  act  of  1859,  the  City  of  Mobile  was  authorized  to  issue  bonds 
to  aid  in  the  construction  of  a  railroad  under  such  contract  as  the  City 
might  make  with  the  railroad  company,  and  was  vested  with  power  to 
adopt  the  ordinances  necessary-  to  carry  out  such  contract.  The  City 
thereafter  contracted  with  the  railroad  company  to  issue  the  bonds  of 
the  City,  and  to  annually  provide  a  certain  sum  to  be  applied  to  the 
payment  thereof  by  a  special  tax  ;  and  to  pass  an  ordinance  to  accom- 
plish this  result.  The  City  did  accordingly  pass  an  ordinance  providing 
for  the  annual  lev}-  and  collection  of  such  a  special  tax.  The  bonds 
now  held  by  Watson  were  issued  to  the  railroad  compam-,  and  sold  by 
it,  upon  the  faith  of  the  act  of  the  legislature  and  the  aforesaid  contract 
and  ordinance  of  the  Cit}'  of  Mobile. 

In  1879  the  legislature  repealed  the  charter  of  the  City  of  Mobile  ; 
and  on  the  same  day  passed  an  act  incorporating  the  Port  of  Mobile. 
All  the  territor}'  included  in  the  Port  of  Mobile  was  embraced  within 
the  limits  of  the  City  of  Mobile.  The  area  of  the  City  comprised  about 
17  square  miles  ;  and  that  of  the  Port  about  8  square  miles.  All  the 
thickl}-  settled  part  of  the  City  was  included  in  the  Port ;  the  excluded 
portion  consisting  of  sparsel}-  settled  suburbs  of  little  value.  Fourteen- 
fifteenths  of  the  inhabitants  of  the  City  were  inhabitants  of  the  Port. 
Out  of  more  than  816,000,000  of  taxable  property  of  the  City,  all  but 
$900,000  was  included  within  the  limits  of  the  Port. 

The  act  repealing  the  charter  of  the  City  provided  for  the  appoint- 
ment of  commissioners,  to  whom  the  City  property  and  claims  should 
be  turned  over  ;  and  who  should  appl}'  the  proceeds  of  such  assets  to 
the  payment  of  debts  of  tlie  City,  the  floating  debt  to  be  paid  first. 
The  act  expressl}'  declared  that  the  commissioners  should  have  no 
power  to  lev}'  any  tax.  By  a  subsequent  act  the  commissioners  of  the 
City  were  required  to  turn  over  to  the  officials  of  the  Port  all  the  real 
and  personal  property  formerly  held  b}-  the  Cit}'  "  for  public  use  and 
governmental  purposes,"  except  only  the  wharves.  It  was  not  pre- 
tended that  payment  could  or  would  be  made  to  the  bondholders  out 
of  the  assets  of  the  City  in  the  hands  of  the  commissioners.  The  act 
incorporating  the  Port  of  Mobile  provided  for  a  Police  Board,  empow- 
ered to  levy  and  collect  taxes  to  a  limited  amount,  for  the  purpose  of 
defraying  the  expenses  of  carrying  out  the  provisions  of  the  act.  By 
a  subsequent  act  it  was  expressly  provided  that  the  Police  Board 
should  not  levy  any  other  tax  than  the  one  authorized  by  the  pre- 
ceding act. 

Plaintiff,  "Watson,  recovered  judgment  against  the  Port  of  Mobile. 
Execution  was  issued,  and  returned  "  no  property  found."  "Watson 
then  filed  a  petition,  praying  for  a  writ  of  mandamus,  to  compel  the 


100  MOBILE    V.   WATSON. 

Port  of  Mobile  and  its  officers  charged  with  the  levying  and  collection 
of  taxes  to  assess,  levy,  and  collect  a  special  tax  for  the  pa^'ment  of 
the  judgment. 

The  court  ordered  the  writ  to  issue  against  the  Port  of  Mobile  and 
the  Police  Board. 

The  original  judgment  against  the  Port  of  Mobile,  and  the  judgment 
rendered  upon  the  petition  for  mandamus,  were  both  brought  up  for 
review  by  the  writ  of  error  sued  out  by  the  Port  of  Mobile. 

Ilannis  Taylor  and  J.  Little  Smith  {Braxton  Bragg  with  them), 
for  plaintiff  in  error. 

Gaylord  B.  Clark  and  James  E.  Webb,  for  defendants  in  error. 

Woods,  J.  [After  stating  the  case.]  We  are  of  opinion,  upon  this 
state  of  the  statutes  and  facts,  that  the  Port  of  Mobile  is  the  legal  suc- 
cessor of  the  City  of  Mobile,  and  liable  for  its  debts.  The  two  corpo- 
rations were  composed  of  substantially  the  same  community,  included 
within  their  limits  substantially  the  same  taxable  property,  and  were 
organized  for  the  same  general  purposes. 

Where  the  legislature  of  a  State  has  given  a  local  comraunit}',  living 
within  designated  boundaries,  a  municipal  organization,  and  b}'  a  sub- 
sequent act  or  series  of  acts  repeals  its  charter  and  dissolves  the  corpo- 
ration, and  incorporates  substantially  the  same  people  as  a  municipal 
body  under  a  new  name  for  the  same  general  purpose,  and  the  great 
mass  of  the  taxable  propert}'  of  the  old  corporation  is  included  within 
the  limits  of  the  new,  and  the  property  of  the  old  corporation  used  for 
public  purposes  is  transferred  without  consideration  to  the  new  cor- 
poration for  the  same  public  uses,  tlie  latter,  notwithstanding  a  great 
reduction  of  its  corporate  limits,  is  the  successor  in  law  of  the  former, 
and  liable  for  its  debts  ;  and  if  any  part  of  the  creditors  of  the  old 
corporation  are  left  without  provision  for  the  payment  of  their  claims, 
they  can  enforce  satisfaction  out  of  the  new.  In  illustration  and  sup- 
port of  this  proposition,  the  following  cases  are  in  point  : 

In  Girardx.  Philadelphia.,  7  Wall.  1,  it  was  held  by  this  court  that 
the  annexation  to  the  City  of  Philadelphia,  having  a  territory  of  only 
two  square  miles,  of  tvvent3'-eight  other  municipalities  with  all  their 
inhabitants,  comprising  districts,  boroughs,  and  townshij)s  of  various 
territorial  extent,  and  the  changing  of  its  name,  did  not  destroy  its 
identity  or  impair  its  right  to  hold  property  devised  to  it. 

So  in  Brouyhton  v.  Pensacola,  93  U.  S.  266,  270,  it  was  said  by 
Mr.,  Justice  Field,  in  delivering  judgment,  that  when  "a  new  form  is 
given  to  an  old  corporation,  or  such  a  corporation  is  reorganized  under 
a  new  charter,  taking  in  its  new  organization  the  place  of  the  old  one, 
embracing  substantially  the  same  corporators  and  the  same  territor}', 
it  will  be  presumed  that  the  legislature  intended  a  continued  existence 
of  the  same  corporation,  although  different  powers  are  possessed  under 
the  new  charter  and  different  officers  administer  its  affairs,  and  in  the 
absence  of  express  provision  for  their  payment  otherwise,  it  will  also 
be  presumed  in  such  case  that  the  legislature  intended  that  the  liabili- 


MOBILE    V.    WATSON.  101 

ties  as  well  as  the  rights  of  property  of  the  corporation  in  its  old  form 
should  accompany  the  corporation  in  its  reorganization." 

In  0'  Connor  v.  Memphis^  6  Lea,  730,  the  Supreme  Court  of  Ten- 
nessee went  so  far  as  to  say  that  —  "  Neither  the  repeal  of  the  charter 
of  a  municipal  corporation,  nor  a  change  of  its  name,  nor  an  increase 
or  diminution  of  its  territory  or  population,  nor  a  change  in  its  mode 
of  government,  nor  all  of  these  combined,  will  destroy  the  identity, 
continuity,  or  succession  of  the  corporation  if  the  people  and  territory 
reincorporated  constitute  an  integral  part  of  the  corporation  abolished. 
.  .  .  The  corporators  and  the  territory  are  the  essential  constituents  of 
the  corporation,  and  its  rights  and  liabilities  naturally  adhere  to  them." 

In  Mount  Pleasant  v.  Beckwith,  100  U.  S.  514,  a  municipal  corpo- 
ration had  been  dissolved  and  its  territory  divided  between  and  an- 
nexed to  three  adjacent  corporations.  Upon  this  state  of  facts  the 
court  held  that,  unless  the  legislature  otherwise  provided,  the  corpora- 
tions to  which  the  territory  and  the  inhabitants  of  the  divided  corpora- 
tion had  been  transferred,  were  severally  liable  for  their  proportionate 
share  of  its  debts,  and  were  vested  with  its  power  to  raise  revenue 
wherewith  to  pay  them  by  levying  taxes  upon  the  property  transferred 
and  the  persons  residing  therein.  See  also  Colchester  v.  Seaber,  3 
Burrow,  1866  ;  Cuddon  v.  Eastwick^  1  Salk.  192  ;  People  v.  Morris, 
13  Wend.  325  ;  N'eio  Orleans  Railroad  Co.  v.  City  of  Neio  Orleans, 
26  La.  Ann.  478. 

[After  referring  to  Amy  v.  Selma,  recently  decided  by  the  Supreme 
Court  of  Alabama.] 

This  construction  of  these  statutes  of  the  State  of  Alabama  b}'  its 
highest  court  being  in  accord  with  our  own  views,  and  in  harmony 
with  former  decisions  of  this  court  on  the  same  general  subject,  is 
decisive  of  the  question  in  hand,  unless  there  is  some  material  differ- 
ence between  the  legislation  concerning  the  City  of  Selma  and  that 
concerning  the  Cit}'  of  Mobile.  The  only  difference  that  can  be  sup- 
posed to  have  an}'  bearing  upon  the  question  under  discussion  is,  that 
the  act  incorporating  Selma  embraced  the  same  territory  as  that  cov- 
ered by  the  City  of  Selma,  whereas  the  Port  of  Mobile  covered  little 
more  than  half  the  territory  embraced  by  the  City  of  Mobile.  We 
think  this  difference  between  the  two  cases  is  an  immaterial  one.  The 
Supreme  Court  of  Alabama,  in  the  case  of  the  Mobile  and  Spring  Hill 
Railroad  Co.  v.  Kennerly.,  74  Ala.  566,  assumed  that  the  City  of  Mo- 
bile and  the  Port  of  Mobile  had  substantial!}-  the  same  corporators  and 
the  same  boundaries.  And  we  are  of  opinion  that  the  exclusion  from 
the  limits  of  the  Port  of  Mobile  of  the  sparsel}'  settled  suburbs  of  the 
City  of  Mobile,  a  territory'  of  little  value,  as  fairly  appears  bv  the 
record,  and  consisting,  as  stated  by  the  counsel  for  plaintiff,  without 
contradiction,  largely  of  fields,  swamps  and  land  covered  with  water, 
will  not  serve  to  distinguish  this  case  from  the  case  of  Amy  v.  Selma. 
We  repeat,  therefore,  that  in  our  judgment  the  Port  of  Mobile  is  the 
legal  successor  of  the  City  of  Mobile,  and  bound  for  its  debts. 


102  MOBILE   V.   WATSON. 

It  follows  from  this  proposition  that  the  remedies  necessary  to  the 
collection  of  his  debt,  which  the  law  gave  the  creditor  of  the  City  of 
Mobile,  remain  in  force  against  the  Port  of  Mobile.  The  laws  which 
establish  local  municipal  corporations  cannot  be  altered  or  repealed  so 
as  to  invade  the  constitutional  rights  of  creditors.  So  far  as  suc4i  cor- 
porations are  invested  with  subordinate  legislative  povyers  for  local 
purposes,  they  are  the  mere  instrumentalities  of  the  States,  for  the 
convemeht  administration  of  their  affairs,  and  are  subject  to  legislative 
control.  But  when  empowered  to  take  stock  in  or  otherwise  aid  a 
railroad  company,  and  they  issue  their  bonds  in  payment  of  the  stock 
CaRBh,  or  to  carry  out  any  other  authorized  contract  in  aid  of  the  rail- 
fS'^d"  compan}',  they  are  to  that  extent  to  be  deemed,private  corpora- 
tiohs,  and  their  obligations  are  secured  by  all  the  guarantees  which 
protect  the  engagements  of  private  individuals.  Broughton  v.  Pensa- 
c^^^3  tJ.  S.  266  ;  iB'imt  Pteascmt  \.  Bechwith,  100  U.  S.  514. 
/^  Therefore  the  remedies  for  the  enforcement  of  such  obligations  as- 
sumed by  a  municipal  corporation,  which  existed  when  the  contract 
was  made,  must  be  left  unimpaired  by  the  legislature,  or,  if  they  are 
changed,  a  substantial  equivalent  must  be  provided.  Where  the  re- 
source for  the  payment  of  the  bonds  of  a  municipal  corporation  is  the 
power  of  taxation  existing  when  the  bonds  were  issued,  any  law  which 
withdraws  or  limits  the  taxing  power  and  leaves  no  adequate  means  for 
the  payment  of  the  bonds  is  forbidden  by  the  Constitution  of  the 
United  States,  and  is  null  and  void.  Von  Hoffman  v.  Quincy,  4  Wall. 
535  ;  Edwards  v.  Kearzey,  96  U.  S.  595  ;  Balls  County  Court  v. 
United  States,  105  U.  S.  733  ;  Louisiana  v.  Pillsbury,  105  U.  S.  278 ; 
Louisiana  v.  Mayor  of  New  Orleans,  109  U.  S.  285.  These  proposi- 
tions receive  sti'ong  support  from  the  decisions  of  the  Supreme  Court 
of  Alabama.  Cominissioners  of  Limestone  County  v.  Bather,  48  Ala. 
433  ;  Edwards  v.  Williamson,  70  Ala.  145  ;  Slaughter  v.  Mobile  County, 
^   ,^73  Ala.  134. 

It  follows  that  the  contract  by  which,  under  authorit}'  of  the  legisla- 
ture, the  City  of  Mobile  agreed  to  levy  a  special  tax  for  the  payment 
of  the  principal  and  interest  of  the  class  of  bonds  to  which  those  held 
by  the  plaintiff  belong  is  still  in  force,  and  its  obligation  rests  upon  its 
legal  successor,  the  Port  of  Mobile. 

All  laws  passed  since  the  making  of  the  contract,  whose  purpose  or 
effect  is  to  take  from  the  City  of  Mobile,  or  its  successor,  the  power  to 
levy  the  tax  and  pay  the  bonds,  are  invalid  and  ineffectual,  and  will  be 
disregarded.  Mr.  Justice  Field,  when  delivering  the  judgment  of  this 
court  in  Wolff  v.  New  Orleans,  103  U.  S.  358,  368,  said  :  "  The  courts, 
therefore,  treating  as  invalid  and  void  the  legislation  abrogating  or  re- 
stricting the  power  of  taxation  delegated  to  the  municipality,  upon  the 
faith  of  which  contracts  were  made  with  her  and  upon  the  continuance 
of  which  alone  they  can  be  enforced,  can  proceed,  and  by  mandamus 
compel,  at  the  instance  of  the  parties  interested,  the  exercise  of  that 
power,  as  if  no  such  legislation  had  ever  been  attempted."     And  so  in 


SHAPLEIGH   V.   CITY   OF    SAN   ANGELO.  103 

Halls  County  Court  v.  United  States,  105  U.  S.  733,  738,  it  was  said 
by  the  Chief  Justice,  speaking  for  the  court,  that  "all  laws  of  the 
State  which  have  been  passed  since  the  bonds  in  question  were  issued, 
purporting  to  take  away  from  the  county  courts  the  power  to  lev}- 
taxes  necessary  to  meet  the  payments,  are  invalid,  and,  under  the  well 
settled  rule  of  decision  in  this  court,  the  Circuit  Court  had  authority-, 
b}'  mandamus,  to  require  the  Count}^  Court  to  do  all  the  law,  when  the 
bonds  were  issued,  required  it  to  do  to  raise  the  means  to  pay  the  judg- 
ment, or  something  substantially  equivalent." 

The  Port  of  Mobile  has  the  machinery  and  officers  requisite  for  the 
assessment  of  propert}'  and  for  the  lev}'  and  collection  of  taxes  to  carry 
on  the  Cit}-  government.  There  is  no  reason  wh}'  the  taxes  necessary 
to  pa}'  the  judgment  of  the  plaintiff  cannot  be  levied  and  collected  by 
the  same  officers.  There  is  no  obstacle  to  the  full  and  complete  per- 
formance by  the  Port  of  Mobile  and  the  Mobile  Police  Board  of  the 
duties  required  by  the  peremptory  writ  of  mandamus  issued  by  the 
Circuit  Court. 

•  It  follows  from  the  views  we  have  expressed  that  the  judgment  of 
the  Circuit  Court  in  favor  of  the  plaintiff  for  $7308.80  and  costs  against 
the  Port  of  Mobile,  and  the  judgment  directing  the  peremptory  writ  of 
mandamus  to  be  issued  against  the  Port  of  Mobile  and  the  Mobile  Po- 
lice Board  for  the  satisfaction  of  such  judgment,  are  both  warranted 
by  law.  Judgments  affirmed.^ 


SHAPLEIGH  V.   CITY  OF  SAN  ANGELO. 

1897.     167  U.  S.  646.2 

Error  to  U.  S.  Circuit  Court  for  Western  District  of  Texas. 

Action  against  the  city  of  San  Angelo,  a  city  incorporated  Feb.  10, 
1892,  under  the  laws  of  the  State  of  Texas.  Plaintiff  seeks  to  recover 
for  the  amount  of  certain  unpaid  coupons  for  interest  on  bonds  issued 
by  a  municipal  organization,  styled  "  the  city  of  San  Angelo,"  which, 
from  January  18,  1889,  to  Dec.  15,  1891,  exercised  the  powers  of  an 
incorporated  city  within  territorial  limits  including  all  the  territory 
afterwards  embraced  within  the  limits  of  the  defendant  corporation ; 
and  claiming  to  have  been  incorporated  by  certain  entries  made  Jan. 
18,  1889,  upon  the  records  of  the  commissioner's  court  of  Tom  Green 

^  "  In  Deveraux  v.  City  of  Broionsville,  29  Fed.  Rep.  742,  the  ruling  in  Mobile  v.  Wat- 
son, stipra,  was  followed  and  extended,  it  being  declared  not  only  that  the  succeeding 
corporation  was  liable  for  the  existing  debts  of  its  predecessor,  but  that  all  the  powers 
of  taxation  possessed  by  such  predecessor,  which  had  been  conferred  as  a  part  of  the 
remedy  to  which  its  creditors  were  entitled,  survived  to  the  new  corporation,  and  that 
their  exercise  could  be  compelled  by  mandamus.  It  was  also  held  that  statutes  which 
prohibited  the  exercise  of  these  powers  of  taxation  were  void,  as  impairing  the  oblL 
gation  of  contracts."     1  Dillon's  Mun.  Corp.,  4th  ed.,  page  250,  note  2.  —  Ed. 

-  Statement  abridged.     Portions  of  opinion  omitted. — Ed. 


104  SHAPLEIGH   V.   CITY   OF    SAN   ANGELO. 

Count}'.  Other  material  facts  are  stated  in  the  opinion.  The  Circuit 
Court  gave  judgment  for  the  defendant. 

T.  K.  Skinker^  for  plaintiff  in  error. 

No  appearance  for  defendant  in  error. 

Shiras,  J.  In  Januar}',  1889,  the  cit}''  of  San  Angelo  was  existing 
and  acting  as  an  organized  municipal  corporation,  with  a  ma^-or,  a 
board  of  aldermen  and  other  functionaries.  In  pursuance  of  an  ordinance 
of  the  city  council  in  Ma}-,  1889,  there  were  issued  the  bonds  in  question 
in  this  case.  It  was  not  denied  that  the  proceedings  were  regular  in 
form,  that  the  bonds  were  dulj  executed  and  registered  as  required  by 
law,  that  the  proceeds  of  their  sale  were  properl}-  applied  to  improv- 
ing the  streets  and  public  highways  of  the  cit}',  and  that  the  plaintiff 
was  a  bona  fide  holder  for  value. 

As  things  then  stood,  it  is  plain  that  the  city  could  not  have  set  up 
to  defeat  its  obligations  any  supposed  irregularit}'  or  illegality  in  its 
organization.  The  State,  being  the  creator  of  municipal  corporations, 
is  the  proper  part}'  to  impeach  the  validity  of  their  creation.  If  the 
State  acquiesces  in  the  validit}-  of  a  municipal  corporation,  its  corporate 
existence  cannot  be  collaterally  attacked. 

This  is  the  general  rule,  and  it  is  recognized  in  Texas  :  "  If  a  munic- 
ipality has  been  illegall}'  constituted,  the  State  alone  can  take  advan- 
tage of  the  fact  in  a  proper  proceeding  instituted  for  the  purpose  of 
testing  the  validity  of  its  charter."  Graham  v.  City  of  Greenville,  67 
Texas,  62. 

But,  in  1890,  at  the  fall  term  of  the  district  court  of  Tom  Green 
Count}',  an  information  was  filed  by  the  county  attorney  against  named 
persons,  who  were  exercising  and  performing  the  duties,  privileges  and 
functions  of  a  mayor  and  city  council  of  the  city  of  San  Angelo,  claim- 
ing the  same  to  be  a  city  duly  and  legally  incorporated  under  the  laws 
of  the  State,  and  alleging  that  said  city  was  not  legally  incorporated, 
and  that  said  named  persons  were  unlawfully  exercising  said  functions. 
Such  proceedings  were  had  that  on  December  15,  1891,  the  said  district 
court  entered  a  decree  ousting  the  said  persons  from  their  said  offices, 
and  adjudging  that  the  incorporation  of  said  city  of  San  Angelo  be,  and 
the  same  was  thereby,  abolished  and  declared  to  be  null  and  void.  The 
record  does  not  distinctly  disclose  the  ground  upon  which  the  court  pro- 
ceeded in  disincorporating  said  city,  but  enough  appears  to  justify  the 
inference  that  the  incorporation  included  within  its  limits  unimproved 
pasture  lands,  outside  of  the  territory  actually  inhabited,  and  that  the 
incorporation  was  declared  invalid  for  that  reason. 

Subsequently,  on  February  10,  1892,  the  city  of  San  Angelo  was 
again  incorporated,  excluding  the  unimproved  lands,  but  including  all 
the  improved  part  of  the  prior  incorporation,  and  in  which  existed  the 
streets  and  highways  in  the  construction  of  which  the  proceeds  of  the 
said  bonds  had  been  exj)ended. 

What  was  the  legal  effect  of  the  disincorporation  of  the  city  of  San 
Angelo  and  of  its  subsequent  reincorporation  as  respects  the  bonds  in 


SHAPLEIGH   V.   CITY   OF    SAN   ANGELO.  105 

suit?  Did  the  decree  of  the  district  court  of  Tom  Green  Count}-, 
abolishing  the  cit}-  of  San  Angelo  as  incorporated  in  1889,  operate  to 
render  its  incorporation  void  ab  initio^  and  to  nullify  all  its  debts  and 
obligations  created  while  its  validity  was  unchallenged  ?  Or  can  it  be 
held,  consistenth'  with  legal  principles,  that  the  abolition  of  the  city 
government,  as  at  fii'st  organized,  because  of  some  disregard  of  law, 
and  its  reconstruction  so  as  to  include  within  its  limits  the  public 
improvements  for  which  bonds  had  been  issued  during  the  first  organi- 
zation, devolved  upon  the  city  so  reorganized  the  obligations  that  would 
have  attached  to  the  original  city  if  the  State  had  continued  to  acquiesce 
in  the  validity  of  its  incorporation  ? 

[After  referring  to  Broughton  v,  Pensacola^  93  U.  S.  266  ;  Mount 
Pleasant  v.  Beckioith,  100  U.  S.  520  ;  and  3Iobile  v.  Watson,  116  U.  S- 
289  :] 

The  conclusions  reached  by  this  court  may  be  thus  expressed : 
The  State's  plenary  power  over  its  municipal  corporations  to  change 
their  organization,  to  modify  their  method  of  internal  government,  or  to 
abolish  them  altogether,  is  not  restricted  b}'-  contracts  entered  into  by 
the  municipalit}'  with  its  creditors  or  with  private  parties.  An  absolute^ 
repeal  of  a  municipal  charter  is  therefore  effectual  so  far  as  it  abolishes 
Hi-  oil]  corporate  organization  ;  but  when  the  same  or  substautially  the 
same  inhabitants  are  erected  into  a  new  corporation,  whether  with 
estenclea  or  restricted  territorial  limits,  such  new  corporation  is  treated 
as  in  law  the  successor  of  the  old  one,  entitled  to  its  property  rights, 
a~nrl  subject  to  its  liabilities.     DilUm's  Man.  Corp.  vol.  1,  §  172.  4th  ed. 

This  view  of  the  law  has  been  accepted  and  followed  b}'  the  Supreme 
Court  of  the  State  of  Texas.  [Citing  and  stating  Morris  v.  /State,  62 
Texas,  728,  730.] 

The  conclusion  which  is  derivable  from  the  authorities  cited,  and  from  ) 
the  principles  therein  established,  is  that  the  disincorporation  by  legal  / 
proceedings  of  the  city  of  San  Angelo  did  not  avoid  leirnlh-  siilisi^tinii; 
(;ontract&»..and  that  upon  the  reincorijoration  of  the  same  inhabitants 
and  of  a  j|igyjf|[|^r.f-ijiQliiai3a>  ^f  liVo  iinpinvptnonfa  made  under  such  con- 
tfacts ^  tlic^obligation  of  the  old  devolved  upon  the  new  corporation. 
^*i lie  tloctrine  successfull}'  invokt-d  in  the  e(jiirt  below  b\'  the  defendant, 
that  where  a  municipal  incorporation  is  whollj'  void  ab  vtitio,  as  being 
created  without  warrant  of  law,  it  could  create  no  debts  and  could  incur 
no  liabilities,  does  not,  in  our  opinion,  apply  to  the  case  of  an  irregularly 
organized  corporation,  which  had  obtained,  by  compliance  with  a  gen- 
eral law  authorizing  the  formation  of  municipal  corporations,  an  organ- 
ization valid  as  against  everybody,  except  the  State  acting  b}'  direct 
proceedings.  Such  an  organization  is  merelv  voidable,  and  if  the  State 
refrains  from  acting  until  after  debts  are  created,  the  obligations  are 
not  destroyed  by  a  dissolution  of  the  corporation,  but  it  will  be  presumed 
that  the  State  intended  that  they  should  be  devolved  upon  the  new  cor- 
poration which  succeeded,  by  operation  of  law,  to  the  property  and 
improvements  of  its  predecessor.    [The  court  then  considered  the  legal 


106  SHAPLEIGH  V.   CITY   OF   SAN   ANGELO. 

effect  of  the  Texas  statute  of  April  13,  1891 ;  which  the  Texas  court 
has  construed  as  requiring  a  vote  of  the  taxpaying  voters  in  favor  of 
assuming  the  debt  before  the  new  incorporation  can  be  held  for  it.] 

.  .  .  Said  act  so  construed  must  be  regarded,  as  respects  prior  cases, 
as  an  act  impairing  the  obligations  of  existing  contracts.  If  the  law, 
before  the  passage  of  the  act  of  1891,  was  that,  by  a  voluntary  reincor- 
poration and  a  taking  over  of  the  property  rights  of  the  old  corporation, 
the  existing  obligations  devolved  upon  the  new  corporation,  it  would 
plainly  not  be  a  legitimate  exercise  of  legislative  power,  as  affecting 
such  prior  obligations,  to  substitute  an  obligation  contingent  upon  a 
vote  of  the  taxpayers. 

When  we  hold  that  the  new  corporation,  under  the  facts  disclosed  by 
this  record,  is  subject  to  the  obligations  of  the  preceding  corporation, 
we  mean  subject  to  them  as  existing  legal  obligations,  in  manner  and 
form  as  they  would  have  been  enforceable  had  there  been  no  change  of 
organization. 

The  judgment  of  the  Circuit  Court  is  reversed,  and  the  cause  is 
remanded  for  further  proceedings  not  inconsistent  with  this 
opinion. 


RUSSELL  V.   THE  MEN  OF  DEVON.  107 


CHAPTER  III. 
LIABILITY  FOR  TORTS. 


\Im'niunity  of  the  State  from  Liability  for  Torts."] 

[The  rule  of  law  with  regard  to  the  liability  of  the  government  is,  that  it 
is  irresponsible,  except  so  far  as  it  has  been  made  responsible  by  special 
statutes.  This  rule  is  applied  to  governmental  contracts,  not  because  the  lia- 
bility of  the  government  for  contracts  is  not  recognized,  but  because  the  courts 
have  not,  in  the  absence  of  special  statutes,  jurisdiction  of  suits  against  the 
government  based  on  contracts.  .  .  .  [But]  while  the  government  recognizes 
in  theory  its  liability  for  contract,  it  does  not  recognize  any  liabiUty  for  torts. 
Goodnow's  Municipal  Home  Rule,  pp.  106,  107. 

One  of  the  rules  of  the  public  law  is  that  the  government  as  a  whole  is  not 
responsible  for  the  torts  which  may  have  been  committed  by  its  officers.  This 
rule  of  law  is  sometimes  said  to  have  originated  in  the  maxim  of  the  English 
law  that  the  king  can  do  no  wrong.  In  this  country,  however,  it  has  been 
held  by  the  supreme  judicial  authority,  namely,  the  Supreme  Court  of  the 
United  States,  that  the  maxim  has  no  existence  in  this  country,  either  in  ref- 
erence to  the  government  of  the  United  States,  or  of  the  several  States,  or  of 
any  of  their  officers.  The  rule  of  law  as  to  the  immunity  of  the  government 
for  liability  for  the  torts  committed  by  its  officers  is  really  based  upon  the 
fact  that  the  government  is  not  regarded  as  a  subject  of  private  law.  Ibid, 
p.  112. 

Inasmuch,  however,  as  not  only  the  private  but  also  the  public  law  is  based 
upon  principles  of  justice,  it  is  necessary  for  us,  in  order  to  get  a  satisfactory  foun- 
dation for  this  particular  principle  of  the  public  law,  to  go  further  and  to  ask, 
why  should  the  public  law  relieve  the  government  from  liability  for  the  wrong- 
ful acts  of  its  officers?  The  reason  is  to  be  found  in  the  fact  that  the  govern- 
ment is  generally  acting  as  the  representative  of  the  sovereign,  and  that  it  is 
extremely  difficult  to  hold  the  representative  of  the  sovereign  responsible  for 
the  mistakes  and  negligences  of  its  officers  so  far  as  they  are  acting  in  this  sov- 
ereign capacity.  "  Assuming  the  wrongful  act  to  be  imputable  to  the  state, 
incident  to  the  unavoidable  imperfections  of  a  machinery  so  complicated  as  its 
system  of  administration,  the  state  enjoys,  of  course,  by  virtue  of  its  sover- 
eignty, the  privilege  of  exempting  itself  from  liability.  A  government  which 
should  hold  itself  responsible  to  all  its  citizens  for  any  legal  injury  suffered 
by  them  through  the  exercise  of  public  powers,  which,  in  other  words,  should 
guarantee  the  just  and  perfect  operation  of  its  administrative  and  judicial 
machinery,  might  find  itself  confronted  with  claims  and  vexed  with  suits  to 
such  an  extent  as  to  be  driven  to  a  limitation  of  its  liability." 


108  RUSSELL  V.   THE  MEN  OF  DEVON. 

It  does  not,  however,  follow,  because  when  the  government  is  acting  as  the 
representative  of  the  sovereign  it  should  be  held  exempt  from  liability,  that 
this  exemption  should  be  extended  to  those  branches  of  activity  where  it  is 
acting  more  as  does  an  ordinary  private  individual,  and  is  entering  into  rela- 
tions similar  to  the  relations  of  the  j^rivate  law.     Ibid.  pp.  113,  114. 

Granting  that  the  state  can  hold  property  for  purposes  similar  to  those  of 
an  individual  owner,  it  follows  logically,  that  it  should  hold  on  similar  condi- 
tions. A  privilege  which  cannot  be  explained  by  the  public  functions  and 
powers  of  the  state  is  anomalous.  The  principal  torts  which  may  be  imputable 
to  the  government  in  connection  with  its  private  relations  are  negligence,  non- 
compliance with  statutory  regulations,  nuisance,  trespass,  and  a  disturbance  of 
natural  easements.  It  is  characteristic  of  these  torts  that  they  violate  obliga- 
tions which  are  imposed  by  law  upon  the  ownership  or  occupation  or  control 
of  property,  that  they  are  sometimes  not  directly  attributable  to  a  specific  act 
of  any  particular  agent,  and  that  the  existence  of  the  wrongful  condition  is 
usually  of  some  benefit  to  the  owner.  The  liability  of  the  state  in  these  cases 
is  demanded  not  only  by  justice  but  by  the  logic  of  the  law.  Its  immunity 
cannot  be  placed  upon  any  convincing  argument.  It  is  to  be  I'egretted  that 
the  courts  have  always  denied  the  liability  of  the  sovereign  in  sweeping 
terms.  .  .  . 

...  In  both  England  and  the  United  States,  however,  the  sovereign  charac- 
ter of  the  government  has  not  been  lost  sight  of  even  when  it  enters  into  these 
private  relations,  and  its  immunity  from  all  liability  for  tort  is  recognized. 
Ibid.  pp.  115,  116,  117.] 


RUSSELL   V.   THE  MEN   DWELLING   IN   THE   COUNTY 
OF   DEVON. 

1788.     2  Term  Reports  (Durnford  ^  East),  667.1 

This  was  an  action  upon  the  case  against  the  men  dwelling  in  the  county 
of  Devon,  to  recover  satisfaction  for  an  injury  done  to  the  waggon  of  the 
plaintiffs  in  consequence  of  a  bridge  being  out  of  repair,  which  ought 
to  have  been  repaired  b}'  the  county  ;  to  which  two  of  the  inhabitants, 
for  themselves  and  the  rest  of  the  men  dwelling  in  that  county,  appeared, 
and  demurred  generally. 

Chambre,  in  support  of  the  demurrer. 

Gibbs,  contra. 

Lord  Kenyon,  C.  J.  If  this  experiment  had  succeeded,  it  would 
have  been  productive  of  an  infinity  of  actions.  And  though  the  fear  of 
introducing  so  much  litigation  ought  not  to  prevent  the  plaintiff's  re- 
covering, if  by  law  he  is  entitled,  yet  it  ought  to  have  considerable 
weiglit  in  a  case  where  it  is  admitted  that  there  is  no  precedent  of  such 
an  action  having  been  before  attempted.  Man}'  of  the  principles  laid 
down  by  the  plaintiff's  counsel  cannot  be  controverted  ;  as  that  an  action 
would  lie  by  an  individual  for  an  injury  which  he  has  sustained  against 
any  other  individual  who  is  bound  to  repair.     But  the  question  here  is, 

1  Arguniciits  omitted. —  En. 


RUSSELL  V.    THE  MEN  OF  DEVON.  109 

"Whether  this  bod}'  of  men,  who  are  sued  in  the  present  action,  are  a 
corporation,  or  qua  a  corporation,  against  whom  such  an  action  can  be 
maintained.  If  it  be  reasonable  that  they  should  be  by  law  liable  to 
such  an  action,  recourse  must  be  had  to  the  Legislature  for  that  pur- 
pose. But  it  has  been  said  that  this  action  ought  to  be  maintained  by 
borrowing  the  rules  of  analogy  from  the  statutes  of  hue  and  cry  :  but  I 
think  that  those  statutes  prove  the  ver}'  reverse.  The  reason  of  the 
statute  of  Wintoti  was  tliis ;  as  the  hundred  were  bound  to  keep  watch 
and  ward,  it  was  supposed  that  those  irregularities  which  led  to  robbery 
must  have  happened  b}'  their  neglect.  But  it  was  never  imagined  that 
the  hundred  could  have  been  compelled  to  make  satisfaction,^  till  the 
statute  gave  that  remedy ;  and  most  undoubtedly  no  such  action  could 
have  been  maintained  against  them  before  that  time.  Therefore  when 
the  case  called  for  a  remedy,  the  Legislature  interposed ;  but  the}'  only 
gave  the  remedy  in  that  particular  case,  and  did  not  give  it  in  an}' 
other  case  in  which  the  neglect  of  the  hundred  had  produced  an  injury 
to  individuals.  And  when  they  gave  the  action,  they  virtually  gave  the 
means  of  maintaining  that  action  ;  they  converted  the  hundred  into  a 
corporation  for  that  purpose  :  but  it  does  not  follow  that,  in  this  case 
where  the  Legislature  has  not  given  the  remedy,  this  action  can  be 
maintained.  And  even  if  we  could  exercise  a  Legislative  discretion  in 
this  case,  there  would  be  great  reason  for  not  giving  this  remedy  ;  for 
the  argument  urged  by  the  defendant's  counsel,  that  all  those  who  be- 
come inhabitants  of  the  county,  after  tlie  injury  sustained  and  before 
judgment,  would  be  liable  to  contribute  their  proportion,  is  entitled  to 
great  weight.  It  is  true  indeed  that  the  inconvenience  does  happen  in 
the  case  of  indictments  ;  but  that  is  only  because  it  is  sanctioned  by 
common  law,  the  main  pillar  of  which,  as  Lord  Coke  says,  is  unbroken 
usage.  Among  the  several  qualities  which  belong  to  corporations,  one 
is,  that  they  may  sue  and  be  sued  ;  that  puts  it  then  in  contradistinction 
to  other  persons.  I  do  not  say  that  the  inhabitants  of  a  county  or  hun- 
dred may  not  be  incorporated  to  some  purposes  ;  as  if  the  king  were  to 
grant  lands  to  them,  rendering  rent,  like  the  grant  to  the  good  men  of 
the  town  of  Islinr/ton.^  But  where  an  action  is  brought  against  a 
corporation  for  damages,  those  damages  are  not  to  be  recovered  against 
the  corporators  in  their  individual  capacity,  but  out  of  their  corporate 
estate  :  but  if  the  county  is  to  be  considered  as  a  corporation,  there  is 
no  corporation  fund  out  of  which  satisfaction  is  to  be  made.  Therefore 
I  think  that  this  experiment  ought  not  to  be  encouraged  ;  there  is  no 
law  or  reason  for  supporting  the  action  ;  and  there  is  a  precedent  against 
it  in  Brooke :  though  even  without  that  authority  I  should  be  of  opinion 
that  this  action  cannot  be  maintained. 

AsHHCRST,  J.  It  is  a  strong  presumption  that  that  which  never  has 
been  done  cannot  by  law  be  done  at  all.  And  it  is  admitted  that  no 
such  action  as  the  present  has  ever  been  brought,  though  the  occasion 

1   Tide  ante,  1  vol.  71.     2  ]Vils.  92,  3.  .  2  /)^er,  100. 


110  MOWER  V.   INHABITANTS   OF   LEICESTER. 

must  have  frequently  happened.  But  it  has  been  said  that  there  is 
a  principle  of  law  on  which  this  action  may  be  maintained,  namely, 
that  where  an  individual  sustains  an  injury  by  the  neglect  or  default  of 
another,  the  law  gives  him  a  remed}'.  But  there  is  another  general 
principle  of  law  which  is  more  applicable  to  this  case,  that  it  is  better 
that  an  individual  should  sustain  an  injury  than  that  the  public  should 
suffer  an  inconvenience.  Now  if  this  action  could  be  sustained,  the 
public  would  suffer  a  great  inconvenience  ;  for  if  damages  are  recover- 
able against  the  county,  at  all  events  they  must  be  levied  on  one  or  two 
individuals,  who  have  no  means  whatever  of  reimbursing  themselves ; 
for  if  the}-  were  to  bring  separate  actions  against  each  individual  of  the 
county  for  his  proportion,  it  is  better  that  the  plaintiff  should  be  without 
remedy.  However  there  is  no  foundation  on  which  this  action  can  be 
supported ;  and  if  it  had  been  intended,  the  Legislature  would  have 
interfered  and  given  a  remed}',  as  they  did  in  the  case  of  hue  and  cry. 
Thus  this  case  stands  on  principle :  but  I  think  the  case  cited  from 
Brake's  Abridgement  is  a  direct  authority  to  shew  that  no  such  action 
can  be  maintained ;  and  the  reason  of  that  case  is  a  good  one,  namely, 
because  the  action  must  be  brought  against  the  public. 
BuLLER,  J,,  and  Grose,  J.,  assented. 

Judgment  for  the  defendants. 


MOWER  V.  INHABITANTS  OF  LEICESTER. 

1812.     9  Massachusetts,  237.1 

Action  at  common  law,  to  recover  for  damages  sustained  through 
the  defect  of  a  highway  in  the  town  of  Leicester.  Verdict  for  plaintiff. 
Motion  in  arrest  of  judgment. 

Blake  and  Lincoln^  for  plaintiff. 

An  injury  arising  from  the  neglect  of  a  duty  enjoined  by  law,  whether 
on  an  individual  or  a  corporation,  is  a  good  foundation  for  an  action  at 
common  law.  Towns  are  by  statute  enjoined  to  maintain  in  good  re- 
pair all  highways  within  their  respective  limits :  and  in  case  of  their 
neglect  of  their  duty  in  this  regard,  and  a  special  injury  happening  to 
an  individual  in  consequence  thereof,  they  are  made  liable  to  double 
the  damages  sustained  thereby,  after  reasonable  notice.  Statute  of  1786, 
ch.  81,  sects.  1  and  7  ...  an  action  at  common  law,  for  the  recovery 
of  single  damages  only,  will  well  lie  for  such  an  injury.  .   .   . 

None  of  the  objections,  which  prevailed  in  the  action  of  Russell  S 
al.  vs.  TJie  men  of  iJevon^  apply  in  this  case.  Hero  the  town  are  a 
corporation  created  by  statute,  capable  of  suing  and  being  sued.  They 
are  bound  by  statute  to  keep  the  publick  highways  in  repair.  They 
have  a  treasury,  out  of  which  judgments  recovered  against  them  may 

1  Statement  abridged. — Ed. 


MOWER   V.   INHABITANTS   OF  LEICESTER.  Ill 

be  satisfied.  They  are  called  upon  to  answer  onl}-  for  their  own  de- 
fault. The  objection,  that  a  multiplicity  of  actions  would  be  the 
consequence  of  levying  the  execution  on  one  or  more  individuals  of 
the  town,  can  have  no  effect  here ;  since  it  would  equally  apply  to 
ever}"  action  against  a  town  or  parish  :  and  yet  such  actions  are  every 
da}'  brought  and  supported  without  hearing  of  this  objection.  Besides, 
individuals  so  situated  have  their  remedy  over  against  the  corporation 
for  the  sum  paid  by  them  ;  and  are  not  put  to  their  action  against  each 
inhabitant  for  his  several  proportion,  as  the  case  referred  to  supposes 
in  the  case  of  an  English  county. 

Bigeloto,  for  defendants.      [Argument  omitted.] 

Curia.  The  plaintiff  has  brought  his  action  against  the  inhabitants 
of  the  town  of  Leicester,  for  the  loss  of  his  horse,  occasioned  by  the 
neglect  of  that  town  to  keep  a  certain  bridge  in  repair.  The  action  is 
at  common  law  ;  without  alleging  any  notice  to  the  inhabitants  of  the 
defect  in  the  bridge,  previously-  to  the  incurring  of  the  damage  by  the 
plaintiff.  —  But  it  is  well  settled  that  the  common  law  gives  no  such 
action.  Corporations  created  for  their  own  benefit  stand  on  the  same 
ground,  in  this  respect,  as  individuals.  But  quasi  corporations,  cre- 
ated by  the  legislature  for  purposes  of  puMick  i)o]icy.  ai-e  siil»ject  by 
the  common  law,  to  an  indictment  for  the  neglect  of  duties  enjoined  on 
them  :■  but  are  not  liable  to  an  action  for  such  neglect,  unless  the  ac- 
tidh'be  gi\cn  b}*  some  statute.  The  only  action  furnished  by  statute 
intnts  case  is  for  double  damages  after  notice,  &c.  —  This  question  is 
fully  discussed  in  the  case  of  Hussell  &  al.  vs.  The  men  of  Devon, 
cited  at  the  bar,  and  the  reasoning  there  is  conclusive  against  the 
action.  Judgment  arrested} 

^  "  In  considering  the  subject  of  the  implied  liability  (by  which  we  mean  a  liability 
where  there  is  no  express  statute  creating  or  declaring  it)  of  municipal  corporations 
to  civil  actions  for-  misconduct  or  neglect  on  their  part,  or  on  the  part  of  their  officers  in 
respect  to  corporate  duties,  resulting  in  injuries  to  individuals,  it  is  essential  to  bear  in 
mind  the  distinction  pointed  out  in  a  former  chapter,  and  to  be  noticed  again  here- 
after, between  municipal  corporations  proper,  such  as  towns  and  cities  specially  char- 
tered or  voluntarily  organizing  under  general  acts,  and  involuntary  quasi  corporations, 
such  as  townships,  school  districts,  and  counties  (as  these  several  organizations  exist 
in  most  of  the  States),  including  therein  for  this  purpose  the  peculiar  form  of  organi- 
zation, before  referred  to,  known  as  the  New  England  town.  The  decisions  of  the 
courts  in  this  country  are  almost  uniform  in  holding  the  former  class  of  corporations 
to  a  much  more  extended  liability  than  the  latter,  even  where  tlie  latter  are  invested 
with  corporate  capacity  and  with  the  power  of  taxation ;  but  respecting  tlie  grounds 
for  this  difference,  there  is  considerable  diversity  of  opinion."  2  Dillon  Mun.  Corp., 
4th  ed.,  s.  961.  — Ed. 


112  CITY    OF   DETKOIT    V.    BLACKEBY. 


X 


A  ,^\ 


CITY   OF  DETROIT   v.  BLACKEBY. 

pr      ^y  1870.    IX  Michigan,  ^\y 

^  Action  against  the  city  of  Detroit  for  an  injur}'  occasioned  b}'  defects 

Oin  a  cross  walk  across  a  public  street. 
[There  was  no  statute  giving,  in  terms,  an  action  against  the  cit}'  for 
damage  occasioned  by  defects  in  streets  ;  but  the  city  was  incorporated 
by  special  charter,  and  had,  under  the  charter,  the  sole  control  of  its 
streets  and  highwaj's,  with  power  to  keep  them  in  repair.] 

In  the  Circuit  Court  the  decision  was  for  the  plaintiff ;  and  the  city 
brought  error. 

J.  P.  WhUtemore^  for  plaintiffs  in  error. 

Geo.  H.  Prentis,  and  Theo.  Romeyn.,  for  defendants  in  error. 

Campbell,  C.  J.  .  .  .  The  streets  of  Detroit  are  public  highways, 
designed  like  all  other  roads,  for  the  benefit  of  all  people  desiring  to 
travel  upon  them.  The  dut}'  or  power  of  keeping  them  in  proper  con- 
dition is  a  public  and  not  a  private  dut}',  and  it  is  an  office  for  the  per- 
formance of  which  there  is  no  compensation  given  to  the  cit3\  Whatever 
liability  exists  to  perform  this  service  to  the  public,  and  to  respond  for 
any  failure  to  perform  it,  must  arise,  if  at  all,  from  the  implication  that 
is  claimed  to  exist  in  the  nature  of  such  a  municipality'. 

There  is  a  vague  impression  that  municipalities  are  bound  in  all  cases 
to  answer  in  damages  for  all  private  injuries  from  defects  in  the  public 
wa3'S.  But  the  law  in  this  State,  and  in  most  parts  of  the  country, 
rejects  this  as  a  general  proposition,  and  confines  the  recover}'  to  causes 
of  grievance  arising  under  peculiar  circumstances.  If  there  is  any 
ground  for  recovery  here,  it  is  because  Detroit  is  incorporated.     And  it 

7  depends  therefore  on  the  consideration  whether  there  is  anything  in  the 
nature  of  incorporated  municipalities  like  this  which  should  subject  them 
'  to  liabilities  not  enforced  against  towns  or  counties.     The  cases  which 
recognize  the  distinction  apply  it  to  villages  and  cities  alike. 

It  has  never  been  claimed  that  the  violation  of  duty  to  the  public  was 
any  more  reprehensible  in  these  corporations  than  outside  of  them  ;  nor 
that  there  was  any  more  justice  in  giving  damages  for  an  injury  sus- 
tained in  a  cit}'  or  village  street  than  for  one  sustained  outside  of  the 
corporate  bounds.  The  private  suffering  is  the  same,  and  the  official 
negligence  may  be  the  same.  The  reason,  if  it  exists,  is  to  be  found 
in  some  other  direction,  and  can  only  be  tried  by  a  comparison  of 
some  of  the  classes  of  authorities  whicli  have  dealt  with  the  subject  in 
hand. 

It  has  been  held  that  corporations  may  be  liable  to  suit  for  positive 
mischief  produced  by  their  active  misconduct,  and  not  from  mere  errors 
of  judgment.  .  .  .  Thayer  v.  The  City  of  JJosto7i,  19  Pick.,  511,  was 
a  case  of  this  kind,  involving  a  direct  encroachment  on  private  prop- 

^  Statement  abridged.     Arguments  omitted.  —  En. 


CITY    OF   DETROIT   V.   BLACKEBY.  113 

erty.  .  .  .  Lee  v.  Village  of  Sandy  Hill,  40  iV!  Y.,  442,  involved  a 
direct  trespass. 

Tiie  injuries  involved  in  these  New  York  and  Massachusetts  cases 
referred  to  were  not  the  result  of  public  nuisances,  but  were  purely 
private  grievances.  And  in  several  cases  cited  on  the  argument,  the 
mischiefs  complained  of  were  altogether  private.  The  distinction 
between  these  and  public  nuisances  or  neglects  has  not  always  been 
observed,  and  has  led  to  some  of  the  confusion  which  is  found  in  the 
authorities.  In  all  the  cases  involving  injuries  from  obstructions  to 
drainage,  the  grievance  was  a  private  nuisance.  [After  referring  to 
authorities.]  Upon  any  theorj'  which  sustains  the  liability  for  such 
grievances,  however,  it  is  manifest  that  the  injury  is  not  a  public  griev- 
ance in  an}-  sense,  and  does  not  involve  a  special  private  damage  from 
an  act  that  at  the  same  time  affects  injuriously  the  whole  people. 

Another  class  of  injuries  involves  a  public  grievance  specially  injur- 
ing an  individual,  arising  out  of  some  neglect  or  misconduct  in  the 
management  of  some  of  those  works  which  are  held  in  New  York  to 
concern  the  municipality  in  its  private  interests,  and  to  be  in  law  the 
same  as  private  enterprises. 

The  cases  in  which  cities  and  villages  have  been  held  subject  to  suits 
for  neglect  of  public  dut}-,  in  not  keeping  highways  in  repair,  where 
none  of  the  other  elements  have  been  taken  into  the  account,  are  not 
numerous,  and  all  which  quote  any  authorit}'  profess  to  rest  especially 
upon  the  New  York  cases,  except  where  the  remedy  is  statutory-. 

[After  citing  various  New  York  cases.] 

But  the  case  of  Weet  v.  Brockport,  16  ^.  y.,  161,  is  recognized  as 
the  one  in  which  the  whole  law  has  been  finallj-  settled,  and  it  is  upon 
the  grounds  there  laid  down,  that  the  Hability  is  now  fixed  in  New  York. 
The  elaborate  opinion  of  Judge  Selden,  which  was  adopted  by  the 
Court  of  Appeals,  denies  the  correctness  of  the  dicta  in  some  of  the 
previous  cases,  and  asserts  the  liability  to  an  action  solely  upon  the 
ground  that  the^  franchises  granted  to  ]^]^^]n^m•pq1  pf^rporat.iona  are  in 
law  a  sufficient  consideration  for  an  implied  promise  to  perform  with 
fideHt^y  all  the  duties  impused  by  the  charter  ;  — and  that  the  liability  Is 
the  same  as  that  which  attaches  ao;ainst  individuals  who  have  fraivchises 


in  ferries,  toll-bridges,  and  the  like.  The  principle,  as  he  states  it,  is  :  — 
"That  whenever  an  individual,  or  a  corporation,  for  a  consideration 
received  from  the  sovereign  power,  has  become  bound  by  covenant  or 
agreement,  either  express  or  implied,  to  do  certain  things,  such  indi- 
vidual or  corporation  is  liable,  in  case  of  neglect  to  perform  such  cove- 
nant, not  only  to  a  public  prosecution  by  indictment,  but  to  a  private 
action  at  the  suit  of  any  person  injured  by  such  neglect.  In  all  such 
cases,  the  contract  made  with  the  sovereign  power  is  deemed  to  enure 
to  the  benefit  of  every  individual  interested  in  its  performance." 

In  order  to  get  at  the  true  ground  of  ]ial)ility,  the  opinion  goes  on  to 


114 


CITY   OF  DETROIT   V.   BLACKEBY. 


determine,  ^rs#,  whether  townships  and  other  public  bodies,  not  being 
incorporated  cities  or  villages,  are  liable,  and  shows  conclusively  that 
they  are  not.  And  the  Court  arrive  at  this  conclusion,  not  on  the  basis 
of  an  absence  of  duty  or  an  absence  of  means,  but  because  their  duties 
are  duties  to  the  public,  and  not  to  individuals.  To  show  this,  full 
citations  are  made  from  the  English  cases,  which  were  cited  before  us, 
:^nd  also  from  the  American  cases. 

It  is  admitted  everywhere,  except  in  a  single  case  in  Maryland,  that 
^m  is  no  common-law  liability  against  ordinary  municipal  corpora- 
dons  such  as  towns  and  counties,  and  that  they  cannot  be  sued  except 
by  statute. 

It  has  also  been  uniformly  held  in  New  York,  as  well  as  elsewhere,  that 
public  officers,  whose  offices  are  created  by  act  of  the  Legislature,  are 
in  no  sense  municipal  agents,  and  that  their  neglect  is  not  to  be  regarded 
as  the  neglect  of  the  municipality,  and  their  misconduct  is  not  charge- 
able against  it  unless  it  is  authorized  or  ratified  expressly  or  by  implica- 
tion. This  doctrine  has  been  applied  to  cities  as  well  as  to  all  other 
corporations. 

And  the  numerous  cases  which  exonerate  cities  from  liability  for  not 
enforcing  their  police  laws,  so  as  to  prevent  damage,  rest  upon  a  very 
similar  basis. 


In  the  case  of  Eastman  v,  Meredith,  36  iV".  H.^  284,  the  distinction 
between  the  English  and  American  municipal  corporations  is  clearly 
defined.  The  former  often  hold  special  property  and  franchises  of  a 
profitable  nature,  which  they  have  received  upon  conditions,  and  which 
they  can  hold  by  the  same  indefeasible  right  with  individuals.  But 
American  raunicipalities  hold  their  functions  merelv  as  governing 
agencies.  They  ma}'  own  private  property,  and  transact  business  not 
strictly  municipal,  if  allowed  b}'  law  to  do  so,  just  as  private  parties 
may,  and  with  the  same  liability.  But  their  public  functions  are  all  held 
at  sufferance,  and  their  duties  may  be  multiplied  and  enforced  at  the 
pleasure  of  the  Legislature.  They  have  no  choice  in  the  matter.  They 
have  no  privileges  which  cannot  be  taken  away,  and  they  derive  no 
profit  from  their  care  of  the  public  ways,  and  the  execution  of  their 
public  functions.  They  differ  from  towns  only  in  the  extent  of  their 
powers  and  duties  bestowed  for  public  purposes,  and  their  improvements 
are  made  by  taxation,  just  as  they  are  made  on  a  smaller  scale  in  towns 
and  counties. 

.  .  .  Because  streets  are  not  private,  and  because,  in  this  State,  at 
least,  no  municipality  can  exercise  any  powers  except  by  State  per- 
mission, and  every  municipal  charter  is  liable  to  be  amended  at  pleasure. 
The  charter  of  Detroit  has  undergone  the  most  radical  changes. 

It  is  impossible  to  sustain  the  proposition  that  these  charters  rest  in 
contract.    And  it  is  impossible,  —  as  Judge  Selden  demonstrates,  to  find 


CITY   OF   DETROIT   V.    BLACKEBY.  115 

legal  warrant  for  any  other  ground  for  distinguishing  the  liability  of  one 
municipal  bod}'  from  that  of  another.  There  is  no  basis  in  authority 
for  any  such  distinction  concerning  the  consideration  on  which  their 
powers  are  granted,  and  it  rests  upon  simple  assertion. 

It  is  impossible  to  harmonize  the  decision  [of  the  New  York  Court] 
with  the  previous  decisions  exempting  corporations  from  responsibiht}' 
because  public  officers  were  not  their  agents.  It  is  no  easier  to  sustain 
it  in  the  face  of  the  uniform  decisions  denying  liability  for  failure  to 
enforce  their  police  regulations.  The  authorities  which  make  corpora- 
tions liable  on  the  ground  of  conditions  attached  to  their  franchises,  go 
very  far  towards  compelling  them  to  respond  as  absolutely  bound  to 
prevent  mischief  And  the  general  reasoning  on  which  the  most  of  the 
opinion  rests,  and  the  criticisms  made  upon  former  decisions,  —  which, 
it  is  asserted,  went  altogether  too  far  in  creating  liability,  —  all  are 
designed  to  show,  and  do  show,  very  forcibly  that  simply  as  municipal 
corporations,  —  apart  from  an}'  contract  theory,  — no  public  bodies  can 
be  made  responsible  for  official  neglect  involving  no  active  misfeasance. 

There  is  no  such  distinction  recognized  in  the  law  elsewhere.  In 
City  of  Providence  v.  Clapp^  17  Hoio.  Ji.,  161,  the  United  States 
Supreme  Court,  through  Judge  Nelson,  held  that  cities  and  towns  were 
alike  in  their  responsibility  and  in  their  immunity.  In  Coitnty  Com- 
missioners of  Anne  Arundel  v.  Dtickett^  20  Md.,  468,  a  county  was 
held  responsible  to  the  fullest  extent.  In  New  Jersey,  in  Freeholders 
of  Sussex  V.  Strader,  3  Harr.  (18  iV!  e/".),  108  ;  Cooley  v.  Freeholders 
of  Essex,  27  JVi  J.,  415  ;  Livermore  v.  Freeholders  of  Camden,  29  N.  J., 
245,  and  2  Vroom  (31  iVi  e/!),  507  ;  and  Pray  v.  Mayor  of  Jersey  City, 
32  J^.  X,  394,  the  cases  were  all  rested  on  the  same  principles,  and 
cities  were  exonerated  because  towns  and  counties  were.  The  sugges- 
tion of  Judge  Selden  has  been  caught  at  b\'  some  courts  since  the  deci- 
sion, and  has  been  carried  to  its  legitimate  results,  as  in  Jones  v.  New 
Haven,  34  Conn.,  1,  where  the  damage  was  caused  by  a  falling  limb  of 
a  tree.  But,  so  far  as  we  have  seen,  even  the  cases  which  are  decided 
on  this  ground,  do  not  hold  that  towns  do  not  receive  their  powers  upon 
a  consideration  as  well  as  cities.  That  question  still  remains  to  be 
handled  iu  those  courts. 

It  is  utterl}'  impossible  to  draw  an}'  rational  distinction  on  any  such 
ground.  It  is  competent  for  the  Legislature  to  give  towns  and  counties 
powers  as  large  as  those  granted  to  cities.  Each  receives  what  is  sup- 
posed to  be  necessary  or  convenient,  and  each  receives  this  because  the 
good  government  of  the  people  is  supposed  to  require  it.  It  would  be 
contrary  to  every  principle  of  fairness  to  give  special  privileges  to  any 
part  of  the  people  and  deny  them  to  others ;  and  such  is  not  the  pur- 
pose of  city  charters.  In  England  the  burgesses  of  boroughs  and  cities 
had  very  important  and  valuable  privileges  of  an  exclusive  nature,  and 
not  common  to  all  the  people  of  the  realm.  The  charters  were  grants 
of  privilege  and  not  mere  government  agencies.     Their  free  customs 


116  CITY    OF    DETROIT    V.    BLACKEBY. 

and  liberties  were  put  b}'  the  great  charter  under  the  same  immunity 
with  private  freeholds.  But  in  this  State,  and  in  this  country'  generalh-, 
they  are  not  placed  be^'ond  legislative  control.  The  Dartmouth  College 
case,  which  first  established  charters  as  contracts,  distinguished  between 
public  and  private  corporations,  and  there  is  no  respectable  authority  to 
be  found  anywhere,  which  holds  that  either  oflfices  or  municipal  charters 
generally  involve  an}'  rights  of  propert}-  whatever.  The}'  are  all  created 
for  public  uses  and  subject  to  public  control. 

We  think  that  it  will  require  legislative  action  to  create  any  liability 
to  private  suit  for  non-repair  of  public  ways.  Whether  such  responsi- 
bilit}'  should  be  created,  and  to  what  extent  and  under  what  circum- 
stances it  should  be  enforced,  are  legislative  questions  of  importance 
and  some  nicety.  They  cannot  be  solved  by  courts- 
Judgment  should  be  reversed  with  costs. 

Christiancy  and  Graves,  JJ.  concurred. 

CooLEY,  J.  dissenting. 

It  is  unquestionabl}',  I  think,  a  rule  of  sound  public  policj',  that  a 
municipal  corporation  which  is  vested  with  full  control  of  the  public 
streets  within  its  limits,  and  chargeable  with  the  duty  of  keeping  them  in 
repair,  and  which  also  possesses  by  law  the  means  of  repair,  should  be 
held  liable  to  an  individual  who  has  suffered  injury  by  a  failure  to  per- 
form this  dut3\  If  we  sat  here  as  legislators  to  determine  what  the  law 
ought  to  be,  I  think  we  should  have  no  difficulty  in  coming  to  this 
conclusion. 

But  we  sit  here  in  a  judicial  capacity,  and  the  question  presented  is, 
what  is  the  law,  and  not  what  ought  the  law  to  be.  This  question  is  to 
be  determined  upon  common-law  principles,  and  the  most  satisfactory 
evidence  of  what  those  principles  are  is  to  be  found  in  the  decisions  of 
the  courts. 

The  decisions  which  are  in  point  are  numerous  ;  the}'  have  been  made 
in  many  different  jurisdictions,  and  by  many  able  jurists,  —  and  there 
has  been  a  general  concurrence  in  declaring  the  law  to  be  in  fact  what 
we  have  already  said  in  point  of  sound  policy  it  ought  to  be.  We  are 
asked,  nevertheless,  to  disregard  these  decisions,  and  to  establish  for 
this  State  a  rule  of  law  different  from  that  which  prevails  elsewhere, 
and  different  from  that  which,  I  think,  has  been  understood  and 
accepted  as  sound  law  in  this  State  prior  to  the  present  litigation. 

The  reason  pressed  upon  us  for  such  a  decision  is,  not  that  the 
decisions  referred  to  are  vicious  in  their  results,  but  that  the  reasons 
assigned  for  them  are  insufficient,  so  that,  logically,  the  courts  ought  to 
have  come  to  a  different  conclusion. 

I  doubt  if  it  is  a  sufficient  reason  for  overturning  an  established 
doctrine  in  the  law,  when  its  results  are  not  mischievous,  that  strict 
logical  reasoning  should  have  led  the  courts  to  a  different  conclusion  in 
the  beginning ;  if  it  is,  we  may  be  called  upon  to  examine  the  founda- 
tion of  many  rules  of  the  common  law  which  have  always  passed 
unquestioned. 


CITY   OF   DETROIT   V.   BLAGKEBY.  117 

T  concur  full}'  in  the  doctrine  that  a  municipal  corporation  or  bod}'  is 
not  liable  to  an  individual  damnified  by  the  exercise,  or  the  failure  to 
exercise,  a  legislative  authority;  and  I  also  agree  that  the  political 
divisions  of  the  State,  which  have  duties  imposed  upon  them  by  general 
law  without  their  assent,  are  not  liable  to  respond  to  individuals  in 
damages  for  their  neglect,  unless  expressly  made  so  by  statute.  Upon 
these  two  points  the  authorities  are  generally  agreed,  and  the  result  is 
well  stated  in  the  opinion  of  the  Chief  Justice. 

The  question  for  us  to  decide  is,  whether  a  different  rule  applies 
where  a  municipal  corporation  exists  under  a  special  charter  which  con- 
fers peculiar  powers  and  privileges,  and  imposes  special  duties,  from 
that  which  prevails  in  the  case  of  towns  and  counties.  The  authorities 
have  found  reason  for  a  distinction,  and  I  am  not  yet  prepared  to  say 
that  their  reason  is  baseless. 

The  leading  case  on  the  subject  is  Henley  v.  The  Mayor  and  Bur- 
gesses of  Lyme  Regis,  which  went  from  the  Common  Pleas  through  the 
King's  Bench  to  the  House  of  Lords,  and  is  reported  in  5  Ling.,  91  ; 
3  Barn,  and  Ad.,  77,  and  1  Bing.  N.  (7.,  222.  In  that  case  it  appeared 
that  the  King,  by  letters  patent,  had  granted  to  the  Mayor  and  Bur- 
gesses of  Lyme  Regis  the  borough  or  town  of  that  name,  and  also  the 
pier,  quay,  or  cob,  with  all  liberties,  profits,  etc.,  belonging  to  the  same, 
and  remitted  a  part  of  their  ancient  rent,  expressing  his  will  therein, 
that  the  said  Mayor  and  Burgesses  and  their  successors,  all  and 
singular,  the  buildings,  banks,  sea-shores,  etc.,  within  the  said  borough, 
or  thereunto  belonging,  or  situate  between  the  same  and  the  sea,  and 
also  the  said  pier,  etc.,  at  their  own  costs  and  charges,  should  repair, 
maintain  and  support.  All  the  courts  held  that  the  defendants,  having 
accepted  the  charter,  became  legally  bound  to  repair  the  buildings, 
banks,  etc.,  and  that  as  this  obligation  was  one  which  concerned  the 
public,  an  action  on  the  case  would  lie  against  them  for  a  direct  and 
particular  damage  sustained  by  an  individual  in  consequence  of  a 
neglect  to  perform  it.  The  reasoning  was,  that  the  things  granted  by 
the  charter  were  the  consideration  for  the  repairs  to  be  made  ;  and  that 
the  corporation,  by  accepting  the  letters  patent,  bound  themselves  to  do 
these  repairs.  Tliis  decision  is  the  unquestioned  law  of  England  to  the 
present  time,  and  is  referred  to  with  approbation  iu  the  American 
cases. 

I  do  not  understand  this  decision  or  the  previous  and  analogous  one 
o^  Mayor  of  Lynn  v.  Turner,  Cowp.,  8G,  to  be  questioned  in  the  present 
case  ;  but  it  is  contended  that  neither  is  applicable,  because  the  grant 
was  one  for  the  benefit  of  the  corporators,  which  they  might  accept  or 
refuse  at  their  option,  but  which,  if  accepted,  must  be  taken  cum 
onere^  and  the  acceptance  was  in  the  nature  of  a  covenant  to  perform 
the  duty  imposed.  Moreover,  that  duty,  it  is  said,  was  individual,  not 
governmental ;  and  the  responsibility  for  failure  to  perform  it  would  not 
depend  on  negligence,  notice,  or  any  other  contingency  not  expressed 
m  the  covenant ;  and  in  any  point  of  view  it  is  argued  tliat  these  deci- 


118  CITY   OF   DETROIT   V.   BLACKEBY. 

sions  have  no  more  bearing  upon  the  question  of  public  duties  and 
public  responsibilities,  than  if  the  grants  to  the  corporations  in  these 
cases  had  been  made  to  individual  residents. 

This  is  not  the  first  time  that  this  view  of  the  cases  referred  to  has 
been  presented  to  the  courts.  It  was  ver}-  fully  examined  by  Mr. 
Justice  Selden  in  Weet  v.  Brockport,  16  N.  J".,  161,  note,  and  in  his 
opinion  there  was  nothing  in  it  which  should  exempt  municipal  corpora- 
tions from  the  principle  declared,  even  when  the  neglect  of  duty  relates 
to  a  governmental  power.  "  It  is  well  known,"  he  very  truly  says, 
that  "  charters  are  never  imposed  upon  municipal  bodies  except  at  tlieir 
urgent  request.  While  they  may  be  governmental  measures  in  theory, 
the}'  are,  in  fact,  regarded  as  privileges  of  great  value,  and  the  fran- 
chises they  confer  are  usually  sought  for  with  much  earnestness  before 
the}^  are  granted.  The  surrender  by  the  Government  to  the  munici- 
pality of  a  portion  of  the  sovereign  power,  if  accepted  b}'  the  latter, 
may  with  propriety'  be  considered  as  affording  ample  consideration  for 
an  implied  undertaking  on  the  part  of  the  corporation,  to  perform  with 
fidelity-  the  duties  which  the  charter  imposes."     Ibid.,  171. 

Now  it  does  not  appear  to  me  to  be  a  sufficient  answer  to  this  posi- 
tion, that  the  State  might,  if  it  saw  fit,  impose  a  municipal  charter 
upon  the  people  without  their  consent  and  even  against  their  remon- 
strance. That  is  not  the  ordinary  course  of  events,  and  the  question 
for  us  to  consider  is  —  What  is  the  legal  significance  of  things  as  they 
actually  occur?  We  find,  as  matter  of  fact,  that  people  apply  for  a 
charter  conferring  such  privileges  as  they  deem  important,  in  view  of 
their  actual  circumstances,  and  that  man}'  of  these  privileges  are  quite 
superior  to,  and  more  valuable  than,  those  possessed  by  the  people 
generally.  When  the  Legislature  grants  these  privileges  it  imposes 
concurrent  duties.  What  is  the  fair  construction  of  these  acts  of  the 
people  and  the  Legislature  respectively,  —  the  people  in  soliciting  the 
privileges,  and  the  Legislature  in  attaching  the  duties  to  the  grant 
which  it  makes?     This  is  the  question  which  we  are  to  consider. 

The  New  York  courts  have  invariably  held  that  when  the  people  of 
the  municipalit}'  accepted  the  charter  which  they  had  tlms  solicited,  a 
contract  was  implied  on  their  part  to  perform  the  corporate  duties. 
They  have  always  denied  that  in  this  respect  there  was  any  difference 
between  a  municipal  corporation  and  a  private  corporation  or  private 
individual,  who  had  received  from  the  sovereignty  a  valuable  grant, 
charged  with  conditions.  —  Ilut.sonv.  N.  K,  9  iV.  Y.,  163;  Weet  v. 
Brockport,  \Cy  JST.  Y.,  note,  161 ;  Conrad  v.  Ithaca,  16  iV,  Y.,  158  ;  Storrs 
V.  Utica,  17  iV:  r:,  104  ;  Mills  v.  Brooklyn,  32  J^.  Y,  489  ;  Lee  v.  Sandy 
Hill,  40  iV.  Y.,  442.  The  same  decision  has  frequenti}'  been  made  in 
other  States.  Meares  v.  Wihmngt07i,  9  Ired.,  73  ;  Pittsburgh  v.  Grier, 
22  Penn.  St.,  63;  Erie  v.  Schwingle,  Ibid.,  388;  Boss  v.  Iladi- 
son,  1  I/td.,  281  ;  StackhoKse  v.  LaFayette,  26  Ind.,  17;  Smoot  v. 
Wetutnpka,  24  Ala.,  112;  Browning  v.  Springfield,  17  III,  143,  in 
which  the  question  is  very  fully  and  carefully  considered  by  Mr.  Chief 


CITY   OF  DETROIT  V.   BLAGKEBY,  119 

Justice  Scales.  Commissioners  v.  Duckett^  20  Md.^  468;  Sawyer  v. 
Corse,  17  Grat.,  241 ;  Richmond  v.  Long^  Ibid.,  375  ;  Bigelow  v.  Ran- 
dolph., 14  Gray,  541,  which,  though  not  an  express  authority,  recognizes 
the  doctrine  :  Jones  v.  New  Haven,  32  Conn,,  1  ;  Cook  v.  Milwaukee, 
recent!}'  decided  by  the  Supreme  Court  of  Wisconsin,  and  to  be  found 
in  9  Law  Reg.  JV.  S.  263  [24  Wis.,  270]. 

The  same  question  has  also  been  frequentl}'  and  fully  examined  by 
the  Supreme  Court  of  the  United  States,  and  no  doctrine  is  more  firmly 
settled  in  that  Court  than  that  municipal  corporations  are  liable  for 
negligence  in  cases  like  the  present.  It  will  be  sufficient,  perhaps,  to 
refer  to  the  case  of  Weightman  v.  Washington,  1  Black,  39,  in  which 
the  English  and  American  cases  were  examined,  but  the  same  question 
has  frequently  been  brought  to  the  attention  of  the  Court  since,  and 
uniformly  with  the  same  result. 

And  it  is  remarkable  that  in  all  the  cases  which  have  upheld  this 
doctrine  there  has  scarcely  been  a  whisper  of  judicial  dissent.  It  would 
be  difficult  to  mention  another  so  important  question,  which  has  been 
so  often,  so  carefully,  and  so  dispassionately  examined,  and  with  such 
uniform  result.  In  no  State  is  the  doctrine  of  Henley  v.  Mayor,  etc., 
of  Lyme  Regis,  as  applied  in  Weet  v.  Rrockport,  denied  except  in  New 
Jersey,  and  in  that  State  the  authorities  I  have  referred  to  seem  to  have 
been  passed  over  in  silence  and  perhaps  were  not  observed. 

We  are  asked,  therefore,  to  overrule  a  rule  of  law  which  is  safe,  use- 
ful and  politic  in  its  operation,  and  which  has  been  generally  accepted 
throughout  the  Union,  not  through  inadvertence  or  by  surprise,  but 
after  careful,  patient  and  repeated  examination  upon  principle,  hy 
many  able  jurists,  who  have  successively  given  due  consideration  to  the 
fallacies  supposed  to  underlie  it.  For  my  own  part  I  must  say  that  the 
fallacies  are  not  clearly  apparent  to  my  mind,  and  I  therefore  prefer  to 
stand  with  the  authorities.  And  I  deem  it  proper  to  add  also,  that, 
inasmuch  as  the  rule  of  responsibility  in  question  seems  to  me  a  jus? 
and  proper  one,  I  should  be  inclined,  if  my  judgment  of  its  logical 
soundness  were  otherwise,  to  defer  to  the  previous  decisions,  and  leave 
the  Legislature  to  alter  the  rule  if  they  should  see  fit.^ 

^  [As  to  civil  liability  for  damages  from  defective  streets.] 

"  The  cases  may  be  grouped  into  the  following  classes  :  — 

"  First.  Where  neither  chartered  cities  nor  counties  or  other  quasi  corporations 
are  held  to  an  implied  civil  liability.  Only  a  few  States  have  adopted  this  extreme 
view  of  exempting  cities  from  liability  in  this  respect. 

"  Second.  Where  the  reverse  is  held,  and  both  chartered  cities  and  counties  are 
alike  considered  to  be  impliedly  liable  for  their  neglect  of  the  duty  in  question.  This 
doctrine  prevails  in  a  small  number  of  States. 

"  Third.  Where  municipal  corporations  proper,  such  as  chartered  cities,  are  held 
Zo  an  implied  civil  liability  for  damages  caused  to  travellers  of  a  defective  and  unsafe 
streets  under  their  control,  but  denying  that  such  a  liability  attaches  to  counties  or 
Other  quasi  corporations  as  respects  highways  and  bridges  under  their  charge.  This 
distinction  has  received  judicial  sanction  in  a  large  majority  of  the  States,  where  the 
legislation  is  silent  in  respect  of  corporate  liability."  2  Dillon,  Man.  Corp.,  4th  ed., 
»  999.— Ed. 


120  MCDADE   V.   CITY   OF   CHESTEK. 

McDADE  V.   CITY   OF   CHESTER. 

1888.     m  Pa.  State,  414.^ 

Action  on  the  case  against  the  city  of  Chester,  to  recover  damages 
for  personal  injury  received  by  the  plaintiff,  from  the  explosion  of  a 
manufactor}'  of  fireworks,  operated  in  that  cit}'.  The  manufactor}'  was 
the  individual  property  of  the  operator,  and  was  located  upon  his 
ground.  The  case  came  before  the  court  upon  a  demurrer  to  the  decla- 
ration. The  plaintiff,  in  the  declaration,  alleged  in  substance  that  it 
was  the  duty  of  the  city  to  have  suppressed  this  manufactorj-  of  fire- 
works ;  that  this  duty  was  neglected ;  and  that,  in  consequence  of  this 
neglect,  the  plaintiff  received  his  injuries. 

By  the  special  act  of  incorporation,  the  mayor  and  councils  of  the 
city  were  empowered  to  make  all  such  by-laws  and  ordinances '' as 
they  ma}^  deem  necessary  to  preserve  the  peace  and  promote  the  good 
order,  government,  and  welfare  of  the  said  city,  and  the  prosperity  and 
happiness  of  the  inhabitants  thereof."  B}-  subsequent  acts  they  were 
empowered  to  prohibit  the  manufacture  of  fireworks  ;  to  prohibit  and 
remove  any  nuisance,  whether  on  public  or  private  ground ;  and  to 
cause  the  removal  of  any  nuisance  ' '  by  such  means  as  to  them  shall 
seem  best." 

The  court  below  gave  judgment  for  defendant  on  the  demurrer. 

Plaintiff  brought  error. 

John  Y.  Hice  {Garjiett  Pendleton  with  him),  for  plaintiff  in  error. 

Orlando  Harvey^  for  defendant  in  error. 

Clark,  J.  [After  stating  the  facts,  and  citing  authorities  applicable 
to  a  case  where  "  a  legal  dut}-  has  been  imposed  by  statute  upon  a 
municipal  corporation."]  But  the  dut}-  imposed  must  be  absolute  or 
imperative,  not  such  as  under  a  grant  of  authority  is  intrusted  to  the 
judgment  and  discretion  of  the  municipal  authorities  ;  for  it  is  a  well 
settled  doctrine  that  a  municipal  corporation  is  not  liable  to  an  action 
for  damages,  either  for  the  non-c^xeix-ise  of,  or  for  the  manner  in  which, 
in  o-ood  faiUi,  it  exercises  discictionary  powers  of  a  public  or  legisla- 
tive character.     Dillon  Muu.  Corp.  §  9-49. 

It  is  likewise  true  that  when  a  power  is  given  to  do  an  act  which 
concerns  the  public  interest,  the  execution  of  the  power,  when  applied 
to  a  public  officer  or  body,  may  be  insisted  upon  as  a  duty,  although 
the  phraseology  of  the  statute  be  permissive  only  ;  especially  is  this  so 
when  there  is  nothing  in  the  act  save  the  permissive  form  of  expression 
to  denote  that  the  legislature  designed  to  lodge  a  discretionary  power 
merely.  Hut  where  the  power  is  lodged  with  persons  exercising,  or  to 
exercise,  legislative  or  judicial  functions,  and  the  subject-matter  of  the 
statute  and  its  phraseology  concur  in  showing  that  the  authority  is 
essentially  discretionary,  no  absolute  duty  is  imposed.  The  true  rule  is 
1  Statement  abridged.     Arguments  omitted.  —  Ed. 


LEVY   V.   MAYOR   &C.   OF  NEW  YORK.  121 

Very  correctly  stated  in  our  own  ease  of  Carr  v.  Northern  Liberties, 
35  Pa.  330,  as  follows  :  "  Where  any  person  has  the  right  to  demand  ^ 
the  exercise  of  a  public  function,  and  there  is  an  officer  or  set  of  offi-  \ 
cers  authorized  to  exercise  that  function,  there  the  right  and  the  I 
authority  give  rise  to  the  duty  ;  but  where  the  right  depends  upon  the  \ 
grant  of  authority,  and  that  authority  is  essentially  discretionary,  no  / 
legal  dut}-  is  imposed."  I 

The  language  of  the  several  statutes  above  referred  to  is  plainly  per- 
missive only.  ...  It  is  plain,  we  think,  that  all  the  various  matters 
mentioned  in  the  eighth  section,  including  the  prohibition  and  abate- 
ment of  nuisances,  were  given  into  the  control  of  municipalities  as 
proper  subjects  for  legislation  in  the  government  of  the  city  ;  and  as 
such  action  necessarih-  involves  the  exercise  of  discretion,  no  absolute 
duty  was  imposed  or  intended  to  be  imposed  by  the  legislature.  The 
whole  question  is  one  of  legislative  intention,  and  we  find  nothing  in 
these  several  statutes  to  indicate  that  the  legislature  meant  more  than 
is  plainly  expressed. 

There  can  be  no  doubt  whatever  that  the  municipal  authorities  of  the 
city  of  Chester  had  full  power  to  act  in  the  premises.  They  had  un- 
doubted authority  either  to  limit  or  to  prohibit  altogether  the  manufac- 
ture, sale  or  exposure  of  fire-works  within  the  corporate  limits,  and  to 
provide  such  safe-guards  for  the  security  of  its  citizens  as  in  their  judg- 
ment might  be  necessar}'.  This  subject-matter  had  been  especially  \ 
intrusted  to  their  judgment  and  discretion  in  the  charter  and  acts  of 
assembly  mentioned  ;  but  certainly  no  person  had  any  right  to  demand 
the  exercise  of  this  power  in  any  particular  way  or  to  any  greater  extent 
than  the  mayor  and  councils,  in  good  faith  and  in  the  exercise  of  their 
discretion,  might  see  proper  to  provide. 

Judgment  affirmed. 


LEVY   V.    MAYOR   &c.   OF  NEW  YORK. 

1848.     1  Sand  ford.  New  York  Superior  Court,  465.^ 

The  city  of  New  York,  having  the  requisite  power,  enacted  an  ordi- 
nance prohibiting  swine  from  running  at  large  in  the  streets,  with  a 
penalty  and  also  a  provision  for  impounding  the  animals.  The  cit}' 
neglected  to  enforce  the  ordinance.  A  swine,  suffered  to  roam  at  large 
in  the  street,  attacked  the  plaintiff's  son,  aged  8.  The  boy  was  mortally 
injured,  dying  the  next  day.  The  father  brought  an  action  on  the  case 
against  the  city,  to  recover  damages  for  the  loss  of  his  son's  services 
and  for  the  expenses  of  burial.  The  declaration  alleged,  in  substance, 
the  foregoing  facts.     The  defendants  demurred. 

^  Statement  abridged.—  Ed. 


122  LEVY  V.  MAYOR   &C.   OF   NEW   YORK. 

Willis  Hall,  for  defendants. 

T.  Warner,  for  plaintiff. 

Sandford,  J.  The  plaintiff's  counsel  well  observed,  that  there  was 
no  precedent  for  such  an  action  as  this ;  and  we  are  compelled  to  add, 
that  there  is  no  principle  upon  which  it  can  be  sustained. 

The  corporation  is  undoubtedly  vested  with  certain  legislative  powers, 
among  which  is  the  authority'  to  restrain  swine  from  running  at  larga  in 
the  streets ;  and  the}'  have  exercised  it  by  enacting  an  ordinance  to 
that  effect.  The  idea,  that  because  they  may  prohibit  a  nuisance,  that 
therefore  they  must  not  only  pass  a  prohibitory  law,  but  must  also 
enforce  it,  at  the  hazard  of  being  subjected  to  all  damages  which  may 
ensue  from  such  nuisance,  is  certainly  novel.  The  corporation  of 
the  city,  in  this  respect,  stands  upon  the  same  footing  within  its  own 
jurisdiction,  as  the  state  government  does  in  respect  of  the  state  at 
large. 

It  is  the  duty  of  the  government  to  protect  and  preserve  the  rights 
of  the  citizens  of  the  state,  both  in  person  and  propert}',  and  it  should 
provide  and  enforce  wholesome  laws  for  that  object.  But  injuries  to 
both  person  and  property  will  occur,  which  no  legislation  can  prevent, 
and  which  no  system  of  laws  can  adequately  redress.  The  government 
does  not  guaranty'  its  citizens  against  all  the  casualties  incident  to 
humanity  or  to  civil  society ;  and  we  believe  it  has  never  been  called 
upon  to  make  good,  by  way  of  damages,  its  inability  to  protect  against 
such  misfortunes. 

There  would  be  no  end  to  the  claims  against  this  city  and  state,  if 
such  an  action  as  this  is  well  founded.  If  a  man  were  to  be  run  over, 
and  his  leg  broken  b}'  an  omnibus  racing  in  the  street,  he  would  forth- 
with sue  the  city  for  damages,  because  tlie  corporate  authorities  neg- 
lected to  enforce  their  ordinance  against  racing  and  furious  driving  in 
the  public  streets.  So,  if  some  miscreant,  by  placing  a  stick  of  timber 
on  a  railroad  track,  should  cause  the  destruction  of  a  passenger  train, 
with  great  loss  of  life  and  limb  ;  the  legislature  would  be  petitioned  by 
the  injured  survivors,  and  the  relatives  of  the  deceased,  for  the  dam- 
ages thereby  occasioned,  on  the  ground,  that  the  public  servants  should 
have  enforced  the  statute  enacted  against  such  offences. 

There  are  innumerable  illustrations  of  the  application  of  the  principle. 
It  suffices  to  say,  that  no  government,  whether  national,  state  or  muni- 
cipal, ever  assume3j^or  was  subjected  to  a  general  liability  of  this 
description. 

Tlurc  is  no  analogy  between  a  municipal  corporation  in  respect  of 
its  legislative  functions,  and  the  duty  or  the  liability,  of  turnpike  com- 
panies, or  other  private  corporations  aggregate.  And  the  same  ma}-  be 
said  of  the  duty  of  commissioners  of  highways,  and  like  public  officers, 
clothed  with  adequate  power  for  the  performance  of  some  plain  execu* 
tive  or  ministerial  dutj'. 

As  to  the  argument  that  the  common  law  imposes  upon  the  corpora* 
tion  the  duty  and  liability  in  question  ;  we  are  unable  to  appreciate  it. 


EASTMAN  V.   MEREDITH.  123 

Nor  do  we  understand,  that  as  a  corporation,  it  is  subjected  per  se,  to 
the  duty  of  keeping  swine  out  of  the  streets. 

We  have  had  occasion  frequently  to  hold  the  city  liable  for  the  negli- 
gence and  misfeasance  of  its  officers  and  agents  ;  but  the  principle  of 
that  liabilit}^  has  no  application  here. 

Waiving  the  consideration  of  the  other  objections  to  the  action, 
which  are  presented  by  the  demurrers,  we  must  decide,  that  the  suit 
cannot  be  maintained. 

Judgment  for  the  defendants. 


EASTMAN  V.   MEREDITH. 

1858.     36  New  Hampshire,  284.1 

Perlet,  C.  J.  The  following  may  be  taken  for  a  general  statement 
of  the  case  set  up  by  the  plaintiff.  The  town  of  Meredith  built  a 
town-house,  to  be  used  for  holding  town-meetings  and  other  public 
purposes.  The  house,  by  the  default  and  negligence  of  those  who 
built  it  in  behalf  of  the  town,  was  so  improperly  constructed  that  the 
flooring  gave  way  at  the  annual  town-meeting  in  1855,  and  the  plain- 
tiff, an  inhabitant  and  legal  voter,  in  attendance  on  the  meeting,  re- 
ceived a  serious  bodil}'  injur}'.  The  accident  and  injury  were  caused 
b}'  the  defects  and  insufficienc}'  of  the  building. 

Assuming  that  it  was  the  duty  of  the  town  to  provide  a  safe  and 
suitable  place  for  holding  town-meetings,  the  question  will  remain, 
whether  a  citizen  of  the  town,  who  suffers  a  private  injur}^  in  the 
exercise  of  his  public  rights  from  neglect  of  the  town  to  perform  this 
public  duty,  can  maintain  an  action  against  the  town  to  recover  damages 
for  the  injury? 

Towns  in  this  State  are  declared  by  statute  to  be  corporations,  and 
consequently  may  sue  and  be  sued  in  reference  to  all  their  legal  rights 
and  liabilities.  But  declaring  them  to  be  corporations  cannot  confer 
upon  them  other  powers  or  subject  them  to  other  duties  than  those 
which  are  conferred  and  imposed  either  by  express  provision  of  some 
statute,  or  are  implied  from  the  general  character  and  design  of  such 
public  corporations.     Hooper  v.  Emery,  14  Maine  377. 

We  have  no  statute  which  gives  an  action  against  a  town  for  an 
injury  like  that  complained  of  in  this  suit;  but  the  general  position 
taken  for  the  plaintiff  is  this  :  The  town  is  a  corporation  ;  it  was  a 
public  duty  of  the  town  to  provide  a  safe  and  proper  place  for  hold- 
ing the  annual  town  meetings ;  the  plaintiff  has  suffered  a  private 
injury  from  neglect  of  the  town  to  perform  this  public  duty,  and  the 
law  holds  a  corporation  liable  to  an  individual  for  any  private  damage 
that  he  may  suffer  from  neglect  of  the  corporation  to  perform  a  public 
duty. 

1  Arguments  omitted.  —  Ed. 


{/' 


124  EASTMAN   V.    MEKEDITH. 

In  considering  the  authorities  which  have  been  relied  on  to  sustain 
the  general  position  of  the  plaintiff,  it  may  be  well  to  distinguish  the 
different  classes  of  corporations  that  have  public  duties  to  perform, 
and  advert  to  the  grounds  upon  which,  in  different  cases,  the  legal 
liability  for  neglect  to  perform  the  public  duty  has  been  held  to  rest. 

Private  corporations,  by  the  conditions,  express  or  implied,  upon 
which  they  hold  their  corporate  powers,  are  frequently  charged  with 
the  performance  of  public  duties ;  and  where  a  private  corporation, 
like  a  turnpike,  a  canal,  or  a  railroad,  accepts  a  grant  of  corporate 
powers  upon  condition  of  performing  a  public  dutj',  and  an  individual 
suffers  a  private  damage  from  neglect  of  the  corporation  to  perform 
the  public  duty,  it  is  well  settled,  upon  the  authority  of  numerous  cases, 
that  he  may  maintain  an  action  against  the  delinquent  corporation,  to 
recover  his  damages.  A  large  proportion  of  the  cases  cited  for  the 
plaintiff  are  of  this  character. 

So  in  England,  where  a  public  duty  is  imposed  on  a  municipal  cor- 
poration as  a  condition  upon  which  the  corporate  franchises  or  corpor- 
ate property  have  been  granted ;  or  where  the  corporation  holds  its 
franchises  or  property  by  a  prescription  from  which  a  grant  on  like 
condition  may  be  inferred,  it  has  been  held  that  any  individual  may 
maintain  an  action  against  the  corporation  to  recover  damages  for  an 
injury  which  he  has  suffered  from  neglect  to  perform  the  public  dut}'. 
In  Henley  v.  Ijyme  Regis^  5  Bingham  91,  S.  G.  in  JError^  3  B.  & 
Adol.  77,  and  1  Bingham  N.  C.  222,  the  corporation  held  their  fran- 
chise of  a  borough,  and  also  a  pier  or  qua}-,  with  the  right  to  take  tolls 
under  a  grant  from  the  crown,  in  which  they  were  directed  to  repair  a 
sea  wall ;  and  it  was  held  that  the  plaintiff  might  maintain  an  action 
to  recover  damages  which  he  had  sustained  by  tlie  neglect  of  the  cor- 
poration to  repair  the  wall.  In  that  case,  1  Bing.  N.  C.  222,  it  was 
said  that  where  a  matter  of  general  and  public  concern  is  involved, 
"  and  the  king,  for  the  benefit  of  the  public,  has  made  a  certain 
grant,  imposing  certain  public  duties,  and  that  grant  has  been  accepted, 
we  are  of  opinion  that  the  public  may  enforce  the  performance  of  those 
duties  by  indictment,  and  individuals  peculiarly  injured,  by  action." 
In  the  Mayor  of  Lyme  in  Error  v.  Turner,  Cowper  87,  the  corporation 
had  immemorially  repaired  and  cleansed  a  creek,  and  the  plaintiff 
maintained  his  action  against  the  corporation  for  damage  caused  b}' 
interruption  of  tlie  navigation  of  tlie  creek  for  want  of  cleansing  and 
repairing.  In  that  case  it  was  said  by  Lord  Mansfield  that  as  the 
defendants  were  bound  by  the  prescription  to  repair,  "  it  might  be  the 
very  condition  and  terms  of  their  creation  or  charter."  In  these  cases 
the  right  to  maintain  the  civil  action  appears  to  be  placed  on  the  ground 
that  the  municipal  corporation  accepted  the  grant  of  their  franchises 
or  their  property  from  the  crown  upon  the  condition  of  performing 
the  public  duty,  and  were  parties  to  a  contract  with  the  government 
in  the  same  way  as  private  corporations  are,  which  accept  the  grant  of 
corporate  powers  upon  similar  conditions. 


EASTMAN   V.   MEEEDITH.  125 

It  is  also  to  be  observed  that  municipal  corporations  in  England  are  ^ 
broadh'  distinguished  in  many  important  respects  from  towns  in  this  .)  * 

and  the  other  New-England  States.  There  is  no  uniformit}'  in  the  cj-js.-'^  i 
powers  and  duties  of  English  municipal  corporations.  They  are  not 
created  and  established  under  any  general  public  law,  but  the  powers  "^'^' "  V^ 
and  duties  of  each  municipality  depend  on  its  own  individual  grant  or 
prescription.  Their  corporate  franchises  are  held  of  the  crown  by  the 
tenure  of  performing  the  conditions  upon  which  they  have  been  granted, 
and  are  liable  to  forfeiture  for  breach  of  the  conditions.  They  indeed 
answer  certain  public  purposes,  as  private  corporations  do,  which  have 
public  duties  to  perform,  and  some  of  them  exercise  political  rights. 
But  they  are  not,  like  towns,  general  political  and  territorial  divisions 
of  the  countr}',  with  uniform  powers  and  duties,  defined  and  varied, 
from  time  to  time,  by  general  legislation.  Towns  do  not  hold  their 
powers  ordinarily  under  any  grant  from  the  government  to  the  indi- 
vidual corporation  ;  or  hy  virtue  of  anj'  contract  with  the  government, 
or  upon  any  condition,  express  or  implied.  Thej'  give  no  assent  in 
their  corporate  capacity  to  the  laws  which  impose  their  public  duties  or 
fix  their  territorial  limits.  In  all  that  is  material  to  tlie  present 
inquiry,  municipal  corporations  in  England  bear  much  less  I'esemblance 
to  towns  in  this  countr}',  than  to  private  corporations  which  are 
charged  with  the  performance  of  public  duties,  and  for  this  reason 
the  English  authorities  on  the  subject  are  but  remotely'  applicable  to 
the  present  case. 

Grants  are  sometimes  made  to  particular  towns  or  cities,  of  special 
powers,  not  belonging  to  them  under  the  general  law  ;  and  there  is  a 
class  of  cases,  in  which  towns  and  cities  have  been  held  liable  to  civil 
actions  for  damages  caused  b}-  neglect  to  perform  public  duties  grow- 
ing out  of  the  grant  of  such  special  powers  :  as  the  power  to  bring 
water  by  an  aqueduct  for  pul)lic  use  by  those  who  pay  a  compensation 
for  it ;  to  light  the  place  with  gas,  on  the  same  terms,  or  to  make  and 
maintain  sewers  at  the  expense  of  adjoining  proprietors.  Thus  in 
The  Mayor,  &c.,  of  New- York  in  Error  v.  Furze,  3  Hill  612,  the 
city  was  empowered  by  a  special  act  to  lay  down  and  maintain  sewers, 
and  charge  the  expense  upon  owners  and  occupants  of  houses  and  lots 
intended  to  be  benefited  ;  and  it  was  iield  that  an  individual  might 
maintain  an  action  against  the  cit}-  to  recover  damages  for  a  private 
injury  which  he  had  suflTered  from  neglect  of  the  city  to  keep  the  sewers 
in  proper  repair.  The  distinction  between  the  liability  of  towns  and 
cities  for  neglect  to  perform  public  duties  growing  out  of  the  powers 
which  they  exercise  under  the  general  law,  and  their  liability  when  the 
duty  arises  from  the  grant  of  some  special  power  conferred  on  the  par- 
ticular town  or  city,  is  recognized  or  explained  in  Bailey  v.  The 
JIayor,   &c.,   of  JVe^c-Tor/c,  3  Hill  531. 

The  decision  in  Lloyd  v.  The  Mayor,  &c.,  of  Neic-Yorl',  1  Selden 
374,  is  put  upon  this  distinction,  between  a  duty  arising  from  the  grant 
of  a  special  power,  and  a  duty  implied  from  the  exercise  of  political 


126  EASTMAN   V.   MEKEDITH. 

rights  under  the  general  law.  "  The  corporation  of  the  city  of  New- 
York,"  it  is  said  in  that  case,  "  possess  two  kinds  of  powers,  one  gov- 
ernmental and  public,  and,  to  the  extent  thet/  are  held  and  exercised, 
is  clothed  with  sovereignty ;  the  other,  private,  and,  to  the  extent  they 
are  held  and  exercised,  is  a  legal  individual.  The  former  are  given 
and  used  for  public  purposes ;  the  latter,  for  private  purposes ;  while 
in  the  exercise  of  the  former  the  corporation  is  a  municipal  govern- 
ment, and  while  in  the  exercise  of  the  latter,  a  legal  individual."  "  The 
rules  of  law  are  clear  and  explicit  which  establish  the  rights,  immu- 
nities and  liabilities  of  the  appellants,  when  in  the  exercise  of  each 
class  of  powers." 

In  some  of  the  aases  in  which  cities  have  been  held  liable  to  a 
civil  action  for  neglect  to  perform  public  duties,  growing  out  of  grants 
conferring  special  powers  and  privileges,  stress  appears  to  have  been 
laid  on  the  circumstance  that  the  cit}'  derived  a  direct  pecuniary  profit 
from  the  grant,  in  the  shape  of  a  toll  or  rent.  But  in  other  cases, 
where  no  benefit  of  that  kind  was  derived  from  the  grant,  cities  have 
been  held  liable,  and  the  decision  has  been  put  on  the  ground  that  the 
grant  of  special  powers,  though  not  the  source  of  an}'  direct  pecuniary 
profit,  was  yet  in  the  nature  of  a  special  privilege  or  immunity,  granted 
for  the  particular  local  advantage  of  the  city,  and  placed  the  corpora- 
tion on  the  same  footing  of  liability  as  if  the  benefit  were  in  the  shape 
of  a  rent,  or  toll,  or  other  pecuniary  income  ;  that  the  grant  was  made 
and  accepted  on  the  same  implied  condition  of  performing  the  public 
duties  growing  out  of  it,  as  if  it  had  afforded  a  direct  profit  in  money. 

In  3Iears  v.  The  Coynmissioners  of  Wilmington,  9  Iredell  73,  the 
corporation  were  sued  for  undermining  a  brick  wall  in  grading  a  street, 
under  authority  conferred  on  the  town  by  sundry  special  acts  of  the 
Leo-islature,  and  were  held  liable  to  the  action.  In  that  case  the  court 
say,  "when  the  sovereign  grants  power  to  a  municipal  corporation  to 
grade  the  streets,  the  grant  is  made  for  the  public  benefit,  and  is 
accepted  because  of  the  benefit  which  the  corporation  expects  to  receive, 
not  by  making  money  directly,  but  by  making  it  more  convenient  for 
individuals  composing  the  corporation  or  town  to  pass  and  repass  in 
the  transaction  of  business,  and  to  benefit  them  by  holding  out  greater 
inducements  for  others  to  frequent  the  town.  The  only  distinction  is 
that  in  one  case  the  money  is  received  directly,  in  the  other  indirectly. 
But  in  both  cases  the  individuals  composing  the  stockholders,"  (that 
is,  in  the  private  corporation,)  "  and  the  citizens  of  the  town,  derive 
special  benefit  from  the  work."  CunUfe  v.  The  Mayor,  <fcc.,  of  Albany, 
2  Barb.  Sup.  Ct.  190,  would  seem  to  fall  into  the  same  class  of  cases. 
There  the  city  claimed  authority  under  a  special  act  to  improve  the 
navigation  of  Albany  Basin,  and  to  maintain  a  bridge ;  and  having 
altered  the  construction  of  the  bridge  under  authority  of  the  act,  were 
decided  to  l)e  liable  to  the  plaintiff  for  an  injury  caused  by  the  bridge 
while  he  was  on  it.  So  of  Rochester  White  Lead  Co.  v.  The  City  of 
Rochester,  3  Comstock  463,  and  Clark  v.  Washington,  12  Wheaton  40. 


EASTMAN   V.   MEREDITH.  127 

In  such  cases  the  special  powers  thus  granted  are  not  held  b}-  the 
particular  town  or  cit}-  under  the  general  law,  and  as  one  of  the 
political  divisions  of  the  countr}-.  The  public  duty  grows  out  of 
the  special  grant  of  power  ;  and,  though  held  and  exercised  b}'  a  town 
or  cit}',  the  nature  of  the  power  granted  is  the  same  as  if  a  like  power 
had  been  conferred  on  a  private  corporation  created  to  answer  the 
same  public  object,  and  the  cases  above  referred  to  hold  the  town  or 
city  liable  to  a  civil  action  for  neglect  to  perform  a  public  duty 
arising  from  the  grant  of  the  special  power  in  the  same  way,  and,  as  I 
understand  them,  upon  the  same  grounds  and  reasons,  as  private  cor- 
porations are  held,  which  are  clothed  with  the  same  powers  and  bound 
to  the  performance  of  the  same  pubhc  duties.  So  far  as  I  have  had 
opportunity  to  examine  this  class  of  cases,  the}-  appear  to  go  upon 
the  ground  that  the  special  power,  though  no  direct  pecuniary  profit 
may  be  derived  from  it,  is  granted  as  an  immunity  and  peculiar  privi- 
lege, for  the  benefit  of  the  particular  town  or  city,  and  is  accepted,  as 
in  the  case  of  a  private  corporation,  upon  the  implied  condition  of  per- 
forming the  public  duties  imposed  by  it  and  growing  out  of  it.  Henley 
V.  Zyme  Eegis,  1  Bing.  N.  C.  222  ;  Mears  v.  Wilmington^  9  Iredell 
73  ;  Mayor,  &c.,  of  New-York  v.  Bailey,  2  Denio  456. 

This  distinction  between  corporations  that  voluntaril}-  accept  the 
grant  of  special  powers  from  the  government,  and  the  inhabitants  of 
any  district  who  are  by  statute  invested  with  particular  powers  with- 
out their  consent,  is  stated  and  relied  on  by  Parsons,  C.  J.,  in  the 
early  case  of  Riddle  v.  Locks  and  Canals,  7  Mass.  187,  and  is  recog- 
Tiized  in  Sears  v.  The  Turnpike,  7  Ct.  9. 

The  case  of  Pittsburg  City  in  PJrrorv.  Grier,  22  Penn.  54,  cited 
for  the  plaintiff,  stands  upon  grounds  which  clearly  distinguish  it  from 
the  present.  The  city,  in  that  case,  was  in  possession  of  a  public 
wharf,  exercising  an  exclusive  supervision  over  it,  and  receiving  tolls 
for  its  use  ;  and  the  plaintiff  sustained  a  special  injury  from  the  neglect 
of  the  city  to  keep  the  wharf  in  order.  Black,  C.  J.,  delivering  the 
opinion  of  the  court,  says,  "The  rule  undoubtedly  is,  that  those  who 
have  a  public  work  under  their  control  are  bound  to  repair  it,  and  the 
force  of  this  obligation  is  still  further  increased  when  it  yields  its  pos- 
sessors a  revenue.  The  cases  above  cited  show  that  this  principle 
applies  to  public  ports  in  possession  of  a  cit}-,  as  well  as  canals, 
bridges  and  other  highways  in  the  hands  of  individuals  and  private 
corporations."  "  The  injury  is  a  violation  of  the  duty  which  arises 
out  of  the  control  which  the  cit}-  has  over  the  port,  and  her  receipt 
of  tolls  from  the  vessels  which  come  into  it."  The  case  is  thus  put 
distinctl}'  on  the  ground  that  the  public  duty  which  was  the  foundation 
of  the  action  arose  out  of  the  control  which  the  city  exercised  over  the 
wharf  and  the  income  received  for  the  use  of  it 

Id  several  of  the  cases  cited  for  the  plaintiff,  cities  and  towns  have 
been  held  liable  for  private  injuries  done  by  them  in  the  course  of 
executing  works  which  they  were  bj-  law  authorized  to  perform.     In 


128  EASTMAN   V.   MEREDITH. 

Scott  V.  The  3Iayor  and  Aldermen  of  Manchester^  37  Law  &  Eq.  495, 
by  the  carelessness  of  workmen  Mliom  the  defendants  emploj'ed  in 
laying  gas-pipes,  a  piece  of  metal  was  thrown  into  the  plaintiff's  eye, 
and  the  city  was  held  to  be  liable.  So  in  Delmonico  v.  The  Mayor, 
c&c,  of  Neio-  York,  1  Sanford  222,  an  action  was  maintained  for 
damage  suffered  b}'  the  plaintiff  from  the  negligence  of  the  defend- 
ants in  the  process  of  constructing  a  sewer.  The  remarks  of  the  court 
in  Anthony  v.  Adams,  1  Met.  285,  are  to  the  point,  that  an  action 
may  be  maintained  against  a  town  in  such  a  case.  The  plaintiff,  in 
cases  of  this  character,  does  not  recover  on  the  ground  that  he  has 
been  denied  an^^  public  right  which  the  corporation  owed  to  him  as  a 
citizen  of  the  town,  or  because  he  has  suffered  an  injury  in  the  exercise 
of  a  public  right,  from  neglect  of  the  town  to  perform  a  public  dut}'. 
The  corporation  being  authorized  by  law  to  execute  the  work,  if,  in 
their  manner  of  doing  it,  the}'  cause  a  private  injur}',  they  are  answer- 
able in  the  same  way  and  on  the  same  principle  as  an  individual  who 
injures  another  by  the  wrongful  manner  in  which  he  performs  an  act 
lawful  in  itself.  It  has  been  sometimes  made  a  question,  whether  in 
the  particular  case  the  corporation  were  liable  as  principals  for  the 
conduct  of  those  who  performed  the  work  on  their  account ;  but  where 
a  work  is  once  conceded  to  be  done  by  the  corporation,  it  would  seem 
to  be  clear,  on  authority  and  general  principles,  that  a  corporation, 
public  or  private,  must  be  held  liable  like  an  individual  for  injuries 
caused  by  negligence  in  the  process  of  executing  the  work. 

Then,  again,  towns  and  other  municipal  corporations,  including  coun- 
ties in  this  kState,  have  power,  for  certain  purposes,  to  hold  and  manage 
property,  real  and  personal ;  and  for  private  injuries,  caused  by  the 
improper  management  of  their  property,  as  such,  they  have  been  held 
to  the  general  liability  of  private  corporations  and  natural  persons  that 
own  and  manage  the  same  kind  of  property.  Bailey  v.  The  Mayor, 
c&c,  of  Nei'j-York,  3  Hill  541.  So  far  as  they  are  the  owners  and 
managers  of  property,  there  would  seem  to  be  no  sound  reason  for 
exempting  them  from  the  general  maxim  which  requires  an  individual 
so  to  use  his  own  that  he  shall  not  injure  that  which  belongs  to  another. 
So  if  a  town  or  city  maintain  an  erection  or  structure  which  is  a  private 
nuisance,  and  causes  a  special  damage,  or,  in  the  performance  of  an 
authorized  act,  invade  any  right  of  property,  the  corporation  has  been 
held  liable  to  a  civil  action.  Thayer  v.  Boston,  19  Pick.  511  ;  Akron 
V.  McComh,  18  Ohio  229  ;  Rhodes  v.  Cleveland,  10  Ohio  159.  If  the 
defendants  in  the  present  case  had  laid  and  maintained  the  foundations 
of  their  town-house  across  a  stream,  and  caused  the  water  to  flow  back 
on  the  plaintiff's  land,  according  to  these  authorities  they  would  have 
been  liable  to  an  action  for  the  damage. 

The  case  of  the  plaintiff  cannot  be  classed  with  any  of  those  to 
which  we  have  adverted.  The  question  here  is,  whether  a  town  is 
Imbio  to  the  action  of  a  citizen  of  the  town  who  has  suffered  a  special 
dairage  from  neglect  of  the  town  to  provide  a  safe  place  for  holding 


EASTMAN    V.   MEREDITH.  129 

the  annual  town-meeting.  The  public  dut}'  relied  on  is  not  enjoined 
b}'  express  provision  of  any  statute.  If  such- a- duty  exists,  it  is  implied 
Trom  the  general  character  and  design  of  such  quasi  corporations,  aud 
imist  depend  ou  the  general  law  applicable  to.  all  towns.  Here  is  no  con- 
fi-'act,  ex[)ress  or  implied,  between  the  State  and  the  individual  town,  and 
no  grant  of  any  special  power  or  privilege  which  can  be  supposed  to 
have  been  voluntaril}'  accepted  by  the  town  upon  condition  of  perform- 
ing the  public  dut}'.  Towns  are  involuntary  territorial  and  political 
divisions  of  the  State,  like  counties,  established  for  purposes  of  govern- 
ment and  municipal  regulation.  It  is  chiefly  through  this  organization 
of  towns  that  the  people  exercise  the  sovereign  power  of  government ; 
and  the  plaintiff's  claim  is  for  damages  which  he  has  suffered  fiom 
neglect  of  the  town  to  provide  him  a  safe  place  for  the  exercise  of  his 
public  and  political  rights  as  a  citizen  of  the  town  and  State.  Among 
the  numerous  authorities  which  the  laudable  industry  of  the  plaintiff's 
counsel  has  brought  to  our  notice,  I  have  not  found  one  which  goes 
the  length  of  holding  that  an  action  can  be  maintained  in  a  case  like 
this.  The  cases  cited  that  come  nearest  the  present  are  perhaps  those 
in  which  it  has  been  held  that  a  town  or  cit}'  is  liable  for  a  private 
damage  caused  by  neglect  to  perform  a  public  duty  growing  out  of  the 
grant  of  some  special  power.  But  those  cases  cannot  be  regarded  as 
authorities  in  point,  because  thej-  appear  to  have  been  decided  upon  a 
distinction  between  the  exercise  of  such  special  powers,  and  the  exercise 
of  the  general  powers  which  belong  to  all  towns  as  mere  public  and 
political  divisions  of  the  country-,  and  upon  the  ground  that  the  special 
powers  thus  granted  to  the  individual  town  or  city  were  in  the  nature 
of  privileges  accepted  upon  the  implied  condition  of  performing  the 
pubUc  duties  growing  out  of  them.  On  the  other  hand,  there  is  a  great 
weight  of  authority  to  show  that  towns  in  New-England  are  not  liable 
to  a  civil  action  in  a  case  like  this. 

In  Riddle  v.  The  Locks  and  Canals,  7  Mass.  169,  187,  the  case  of 
Russell  V.  The  Men  of  Devon,  2  T.  R.  667,  is  cited  as  an  authority 
applicable  to  towns  and  counties  in  Massachusetts  ;  and  in  Moicer  v. 
Leicester,  9  Mass.  250,  it  was  held  that  towns  are  not  liable  to  a  civil 
action  for  neglect  to  perform  public  duties  imposed  on  them,  unless  the 
action  were  given  by  some  statute,  and  Russell  v.  The  3fen  of  Devon 
was  again  recognized  as  applicable  to  the  case  of  towns.  The  Mer- 
chants^ Bank  v.  Cook,  4  Pick.  114  ;  Tisdale  v.  Norton,  8  Met.  292  ; 
Eolman  v.  Townsend,  13  Met.  300,  and  Brady  v.  Lowell,  3  Gushing 
124,  ai'e  to  the  same  point. 

In  Adams  v.  Wiscasset  Bank,  1  Greenl.  361,  Mellen,  C.  J.,  cites 
from  Riddle  v.  The  Locks  and  Canals  the  remarks  of  C.  J.  Parsons 
on  this  subject,  and  adds,  "  No  private  action,  unless  given  by  statute, 
lies  against  quasi  corporations  for  breach  of  a  corporate  duty."  And 
other  cases  in  Maine  would  seem  to  show  that  the  rule  as  above  stated 
is  well  established  in  that  State.  Hooper  v.  Emery,  14  Maine  377; 
Reed  v.  Belfast,  20  Maine  248 ;  Sanford  v.  Augusta,  32  Maine  536,. 

9 


130  EASTMAN   V.   MEREDITH. 

We  understand  the  same  rule  to  prevail  in  Vermont.  In  Baxter 
V.  The  Winooski  Twrnpike^  22  Vt.  123,  Bennet,  J.,  in  delivering  the 
opinion  of  the  court,  sa3's,  "  I  take  it  to  be  well  settled  that  if  the 
statute  had  not  given  the  action,  no  individual  who  had  sustained 
a  special  damage  through  neglect  of  the  town  to  repair  their  roads, 
could  maintain  a  suit.  It  may  be  said  that  where  an  individual  sus- 
tains an  injury  by  the  neglect  or  default  of  another,  the  law  gives  a 
remedy ;  but  that  principle  does  not  apply  where  the  pubUc  are  con- 
cerned." And  the  same  general  doctrine  is  affirmed  in  Hyde  v. 
Jamaica,  27  Vt.  443. 

In  Connecticut  it  is  held  that  no  action  will  lie  for  injuries  caused  by 
defects  in  a  highway,  unless  given  by  statute.  Chedsey  v.  Canton, 
17  Conn.  475. 

In  Farnum,  v.  Concord,  2  N.  H.  392,  Richardson,  C.  J.,  says,  "No 
action  lies  at  common  law  against  towns  for  damages  sustained  through 
defects  in  highways."  He  cites,  as  authorities  for  his  position.  Mower 
V.  Leicester,  and  Mussell  v.  The  Men  of  Devon,  and,  after  quoting  the 
provision  of  our  statute  which  gives  an  action  for  special  damages 
caused  by  insufficiency  of  highways,  he  adds,  "  And  the  question  is, 
whether  any  damage  has  happened  to  the  plaintiff  in  this  case  by  means 
of  the  insufficiency  or  want  of  repairs  of  the  highwa}'  in  question, 
within  the  intent  and  meaning  of  this  statute."  The  right  to  recover 
against  the  town  is  thus  placed  entirely  on  the  statute. 

It  is  said  in  argument  that  the  authority  of  these  New-England  cases 
is  much  weakened  by  the  circumstance  that  they  may  all  be  referred 
for  their  origin  to  Russell  v.  The  Men  of  Devon,  and  that  the  reasons 
assigned  for  the  decision  in  that  case  are  not  applicable  to  our  towns. 
There  is  certainly  no  such  exact  resemblance  between  counties  in 
England  and  our  towns,  as  will  make  all  the  reasons  upon  which  the 
court  in  that  case  placed  their  decision  applicable  to  towns  in  this  State. 
Counties  in  England  are,  however,  territorial  and  political  divisions  of 
the  country,  as  counties  and  towns  are  here ;  they  are  quasi  corpora- 
tions, so  far  as  to  be  liable  to  public  prosecution  for  neglect  to  perform 
their  public  duties ;  and  the  reason  that  the  county  had  no  corporate 
fund  out  of  which  the  plaintiff's  judgment  could  be  paid,  would 
seem  to  be  as  strong  against  maintaining  an  indictment  as  a  civil 
action ;  for  it  is  not  easy  to  see  how  the  want  of  a  corporate  fund 
would  make  it  more  difficult  to  collect  a  judgment  recovered  by  an  indi- 
vidual, than  to  levy  a  fine  assessed  after  conviction  on  an  indictment. 
That  is  indeed  admitted  in  the  judgment  of  the  court,  and  the  liability 
of  a  county  to  indictment  put  on  the  ground  of  authority  and  unbroken 
usage.  And  the  doctrine  of  that  case  has  been  adopted  and  applied 
to  towns  in  numerous  instances,  by  judges  who  must  certainly  be 
'reckoned  among  the  most  eminent  jurists  that  New-England  has  pro- 
duced :  by  Parsons  and  Shaw  in  Massachusetts,  by  Mellen  and  Shep- 
ley  in  Maine,  and  by  our  own  learned  and  excellent  Chief  Justice  Mich- 
ardson^  in  this   State ;  names  which  carry  with  them  an  irresistible 


EASTMAN   V.   MEREDITH.  131 

weight  of  authorit}'  on  all  legal  questions,  and  especially  on  one  like 
the  present ;  for  no  men  in  tlie  countrj'  have  been  more  familiarly 
acquainted  with  the  whole  legal  history  of  towns  in  New-England, 
and  all  the  traditions  of  the  law  in  relation  to  them. 

A  manuscript  case  of  Wheeler  v.  Troy  has  been  shown  to  us,  in 
which  it  is  understood  to  have  been  decided,  in  December,  1848,  at 
the  term  of  the  Superior  Court  for  Cheshire  county,  that  towns  in  this 
State  are  liable  to  an  action  for  damages  caused  by  defect  of  highwaj-s, 
independent  of  the  statute  which  gives  the  action.  Taking  that  case 
to  be  correctly  reported  and  to  have  been  correctly  decided,  it  is  far 
from  coming  up  to  the  present.  The  duty  to  repair  highways  is  espe- 
cially enjoined  upon  towns  b}'  statute,  for  the  common  benefit  of  all  who 
have  occasion  to  use  them.  It  is  not  a  public  duty,  supposed  to  be 
devolved  upon  towns  to  enable  their  own  citizens  to  exercise  and 
enjoy  their  public  and  political  rights,  like  that  on  which  the  plaintiff 
relies  in  this  case. 

We  find,  however,  upon  inquiry,  that  this  case  of  Wheeler  v.  2'roy 
was  decided  by  two  only  of  the  three  judges  then  on  the  bench,  in  the 
absence  of  Mr.  Justice  Woods,  whose  opinion  on  a  question  of  this 
kind  would  have  added  great  weight  to  the  authority  of  the  case ;  and 
we  have  no  information  that  he  then  concurred  or  now  concurs  in  the 
decision.  The  case  has  remained  long  without  any  published  report, 
and  has  received  no  confirmation  from  recognition  in  an}^  subsequent 
decision,  or  from  the  acquiescence  of  the  legal  profession  ;  and,  indeed, 
the  manuscript  report  of  the  case  fails  to  afford  evidence  that  it  was 
decided  after  so  careful  and  thorough  a  consideration  as  was  usual  with 
that  court ;  and,  if  an  occasion  should  hereafter  arise  to  require  it,  we 
should  feel  quite  at  libert}'  to  reverse  the  decision ;  but  we  do  not  find 
ourselves  called  on  to  do  it  at  this  time. 

A  distinction  has  been  suggested  in  argument,  between  an  omission 
or  total  neglect  to  perform  a  public  dut}',  and  negligence  in  the  manner 
of  performing  it.  It  has  been  contended  that  though  the  town  might 
not  be  liable  for  damages  caused  by  omission  to  perform  the  duty,  they 
would  be  for  an  injury  caused  b}'  the  negligent  and  improper  manner  of 
performing  it.  There  are  doubtless  cases  where  a  party  who  is  under 
no  legal  obligation  to  perform  an  act  or  service,  is  yet  liable  for  damages 
caused  b}'  his  negligence,  if  he  voluntarily  enters  upon  the  perform- 
ance of  it.  But  our  discussion  of  this  case  has  gone  on  the  assump- 
tion that  it  was  the  duty  of  the  town  to  provide  a  safe  and  suitable 
place  for  holding  the  town-meeting ;  and  we  are  unable  to  perceive  any 
distinction  in  principle  between  a  claim  to  recover  damages  for  a  total 
neglect  to  perform  an  admitted  public  duty,  and  for  neglect  to  perform 
it  properly  and  with  due  care,  when  the  injury  complained  of  happens 
to  the  plaintiff  in  the  exercise  of  his  public  rights  as  a  citizen  of  the 
town.  The  duty  is  not  performed  unless  it  is  properly  performed.  In 
both  cases  the  town  has  neglected  to  perform,  or  failed  to  perform,  the 
public  duty  which  they  owed  to  the  plaintiff  and  other  citizens. 


132  THAYER   V.   CITY   OF   BOSTON. 

We  see  no  reason  to  question  the  authority  of  towns  to  build  and 
own  town-houses,  to  be  used  for  holding  town-meetings  and  other 
public  purposes.  But  it  b}'  no  means  follows  as  a  necessary  conse- 
quence that  it  is  the  duty  of  towns  to  provide  houses  of  their  own  for 
such  purposes.  And  even  where  the  town  is  provided  with  a  town- 
house,  we  are  not  required,  in  the  view  which  we  take  of  this  case,  to 
sa}^  whether  the  duty  to  see  that  the  house  is  in  proper  order  for  public 
use  rests  on  the  town  in  a  corporate  capacity,  or  on  the  officers  of  the 
town.  There  is  no  statute  that  requires  town  meetings  to  be  held  at 
the  town-house,  even  in  cases  where  the  town  owns  such  a  building. 
On  the  contrary-,  the  warrant  of  the  selectmen  notifying  the  meeting  is 
by  the  statute  *•'  to  i)rescribe  the  place."  If  the  town-house  were  known 
at  the  time  to  be  in  an  unsafe  condition,  it  would  hardly  be  contended 
that  their  dut}'  would  require  the  selectmen  to  notif}'  the  meeting  to 
be  held  there.  It  may  perhaps  be  found,  when  the  question  shall  be 
considered,  that  it  belongs  to  the  town  officers,  and  not  to  the  town  in 
a  corporate  capacity,  to  see  that  the  town  meetings  are  held  in  a  safe 
and  suitable  place. 

We  regard  the  present  case  as  one  of  new  impression.  We  have 
heard  of  no  earlier  attempt  in  this  State  to  maintain  an  action  against 
a  town,  for  a  private  injury  suffered  by  a  citizen  of  the  town  from 
neglect  of  the  town  to  provide  him  with  safe  and  suitable  means  of 
exercising  his  public  rights,  and  we  are  not  informed  of  any  case  in 
which  such  an  action  has  been  maintained  in  any  other  State.  We 
believe  it  to  have  been  the  general  understanding  of  the  profession 
in  this  State,  that  an  action  will  not  lie  against  a  town  for  neglect  to 
perform  a  mere  public  duty,  unless  the  action  is  given  by  statute.  The 
authorities  cited  in  support  of  the  plaintiff's  action  are  very  distin- 
guishable, as  we  think,  from  the  present  case,  and  there  is  a  great 
weight  of  authority  on  the  other  side. 

Our  conclusion  is,  that  this  action,  on  the  case  stated  to  us,  cannot 
be  maintained. 


,j      »       ,^^  '  THAYER  V.  CITY  OF  BOSTON. 

\  1837.     19  Pickerim/  {Massachusetts),  510.1 

The  declaration  alleged,  in  substance,  that  the  plaintiffs  were  owners 
of  a  messuage  abutting  on  a  public  way,  which  way  the  plaintiffs,  by 
reason  of  their  ownership  of  the  messuage,  had  a  right  to  enjoy  ;  that 
the  defendants  took  up  the  pavement  in  front  of  the  messuage  and 
])uildiugs,  dug  up  the  soil,  and  erected  stalls  and  benches  on  the  pas- 
sage way  ;  and  that  the  defendants  by  these  acts  obstructed  tlie  access 
to  the  messuage,  and  also  obscured  and  darkened  it,  thus  causing  spe- 
cial damage  to  the  plaintiffs. 

'  Statement  abridged.    Citations  of  counsel  and  portions  of  opinion  omitted.  —  Ed. 


THAYER   V.   CITY   OF   BOSTON.  133 

Plea,  the  general  issue. 

It  appeared  at  the  trial,  that  the  removal  of  the  pavement  &c.  and 
the  depositing  of  the  earth,  &c.  in  front  of  the  plaintiffs'  messuage, 
were  acts  done  by  officers  of  the  city,  having  authority  over  streets 
and  public  lands,  and  claiming  to  act  bj'  authority  of  their  office,  and 
that  the  persons  employed  were  paid  from  the  city  treasury  ;  and  that 
the  erection  of  the  stalls,  booths,  &c.  and  the  occupation  of  the  land 
in  front  of  the  plaintiffs'  messuage,  were  by  persons  under  permission 
from  officers  of  the  city,  claiming  authority  as  such  ;  and  that  the  city 
received  rent  therefor,  claiming  title  to  the  locus  in  fee. 

The  defendants  objected  that  this  action  could  not  be  maintained 
against  them  for  any  of  the  acts  alleged  to  have  been  done  in  the  pub- 
lic street  in  question,  because  they  were  performed,  not  by  the  cit}', 
but  by  the  surveyors  of  highways  and  other  officers  dul}'  authorized  by 
law ;  and  if  the  officers  were  not  so  authorized,  the}',  and  not  the  city, 
were  responsible  for  their  unlawful  acts  ;  that  the  corporation  could  not 
be  made  answerable  for  any  unauthorized  trespasses  of  its  officers,  and 
that  in  fact  it  was  incapable  of  committing  a  trespass.  But  for  the 
purposes  of  the  trial  it  was  ruled,  that  the  defendants  were  responsible 
for  the  acts  of  the  officers  of  the  citj'. 

Verdict  for  plaintiffs. 

tA  Pickering  and  C.  P.  Curtis,  for  defendants.  v 

Metcalf  SiXid  C.  G.  Loring,  for  plaintiffs. 

Shaw,  C.  J.  .  .  .  The  action  is  an  action  of  the  case  against  the 
city  in  its  corporate  capacity,  for  special  damage,  alleged  to  have  been 
done  to  the  plaintiffs,  in  their  estates,  by  the  officers  of  the  cit}-,  hav- 
ing authorit}'  over  the  streets  and  highways  of  the  city,  by  acts  which 
they  professed  to  do  b}'  virtue  of  their  offices,  and  for  the  use  and  ben- 
efit of  the  cit}'. 

It  is  a  well  settled  rule  of  law,  that  if  an  individual  suffer  special 
damage,  by  any  unlawful  act,  in  obstructing  a  highwa}',  he  shall  have 
his  action  although  the  part}'  doing  the  act  is  liable  to  an  indictment. 

Supposing  this  to  be  a  public  highway,  and  the  plaintiffs  to  have 
sustained  a  special  damage,  so  as  to  enable  them,  upon  general  prin- 
ciples, to  maintain  an  action,  then  it  is  argued  that  such  an  ac- 
tion, sounding  in  tort,  cannot  be  maintained  against  the  city,  in  its 
corporate  capacity ;  and  whether  such  action  can  be  maintained, 
is  the  question  which  has  been  mainly  considered  in  the  present 
case. 

The  argument  strongly  pressed  by  the  defendants  is,  that  if  the 
officers  of  the  corporation,  within  their  respective  spheres,  act  lawfully 
and  within  the  scope  of  their  authority,  their  acts  must  be  deemed 
Justifiable,  and  nobody  is  hable  for  damages,  and  if  any  individual 
sustains  loss  by  the  exercise  of  such  lawful  authority,  it  is  damnum 
absque  injuria.  But  if  they  do  not  act  within  the  scope  of  their  au- 
thority, they  act  in  a  manner  which  the  corporation  have  not  author- 


134  THAYER   V.   CITY   OF  BOSTON. 

ized,  and  in  that  case  the  ofHcers  are  personally  responsible  for  such 
unlawful  and  unauthorized  acts. 

But  the  Court  are  of  opinion  that  this  argument,  if  pressed  to  all  its 
consequences,  and  made  the  foundation  of  an  inflexible  practical  rule, 
would  often  lead  to  very  unjust  results. 

There  is  a  large  class  of  cases,  in  which  the  rights  of  both  the  public 
and  of  individuals  may  be  deeply  involved,  in  which  it  cannot  be  known 
at  the  time  the  act  is  done,  whether  it  is  lawful  or  not.  The  event  of 
a  legal  inquir}',  in  a  court  of  justice,  may  show  that  it  was  unlawful. 
Still,  if  it  was  not  known  and  understood  to  be  unlawful  at  the  time,  if 
it  was  an  act  done  by  the  officers  having  competent  authority,  either  hy 
express  vote  of  the  city  government,  or  by  the  nature  of  the  duties  and 
functions  with  which  the}'  are  charged,  b}'  their  offices,  to  act  upon  the 
general  subject  matter,  and  especially  if  the  act  was  done  with  an  hon- 
est view  to  obtain  for  the  public  some  lawful  benefit  or  advantage, 
reason  and  justice  obviously  require  that  the  cit}',  in  its  corporate  ca- 
pacity, should  be  liable  to  make  good  the  damage  sustained  by  an  indi- 
vidual, in  consequence  of  the  acts  thus  done.  It  would  be  equally 
injurious  to  the  individual  sustaining  damage,  and  to  the  agents  and 
persons  employed  by  the  city  government,  to  leave  the  party  injured 
no  means  of  redress,  except  against  agents  emplo^'ed,  and  by  what  at 
the  time  appeared  to  be  competent  authorit}',  to  do  the  acts  complained 
of,  but  which  are  proved  to  be  unauthorized  bj-  law.  And  it  may  be 
added,  that  it  would  be  injurious  to  the  city  itself,  in  its  corporate 
capacit}',  by  paralyzing  the  energies  of  those  charged  with  the  duty  of 
taking  care  of  its  most  important  rights,  inasmuch  as  all  agents,  officers 
and  subordinate  persons,  might  well  refuse  to  act  under  the  directions 
of  its  government  in  all  cases,  where  the  act  should  be  merely  com- 
plained of,  and  resisted  by  any  individual  as  unlawful,  on  whatever 
weak  pretence ;  and  conformably  to  the  principle  relied  on,  no  obliga- 
tion of  indemnity  could  avail  them. 

The  Court  are  therefore  of  opinion,  that  the  city  of  Boston  may  be 
liable  in  an  action  of  the  case,  where  acts  are  done  b}'  its  authority 
which  would  warrant  a  like  action  against  an  individual,  provided  such 
act  is  (lone  I)}'  the  auUiority  and  order  of  the  city  government,  or  of 
those  bra.nches  of  the  city  governmeut,  invested  with  jurisdiction  to  act 
for~the  corporation,  upon  the  subject  to  which  the  particular  act  relates, 
or  where  after  the  act  has  been  done,  it  has  been  ratified,  by  the  cor- 
poration, by  any  similar  act  of  its  officers. 

That  an  action  sounding  in  tort,  will  lie  against  a  corporation,  though 
formerly  doubted,  seems  now  too  well  settled  to  be  questioned.  Yar- 
horough  V.  Bank  of  England,  16  East,  6  ;  /Smith  v.  Birmingham  <fcc. 
Gas  Light  Co.,  1  Adolph.  &  Ellis,  526.  And  there  seems  no  sufficient 
ground  for  a  distinction  in  this  respect,  between  cities  and  towns  and 
other  corporations.  Clark  v.  Washington,  12  Wheaton,  40  ;  Baker  v. 
Boston,  12  Pick.  184. 
Whether  a  particular  act,  operating  injuriously  to  an  individual,  was 


ANTHONY  V.   INHABITANTS  OF  ADAMS. 


135 


authorized  by  the  cit}',  by  an}-  previous  delegation  of  power,  general  or 
special,  or  by  any  subsequent  adoption  and  ratification  of  particular 
acts,  is  a  question  of  fact,  to  be  left  to  a  jur}-,  to  be  decided  hy  all  the 
evidence  in  the  case.  As  a  general  rule,  the  corporation  is  not  respon- 
sible for  the  unauthorized  and  unlawful  acts  of  its  officers,  though  done 
colore  officii ,'  it  must  further  appear,  that  they,  were  expressly  author- 
ized to  do  the  acts,  by  tjie  city  government,  or  that  they  were  done 
IjonCi  jhle  in  pursuance  of  a  general  authorit}"  to  act  for  the  cit}",  on  the 
subject  to  which  they  relate ;  or  that,  in  either  case,  the  act  was 
adopted  and  ratified  by  the  corporation.  As  the  evidence  was  not 
submitted  to  the  jury  in  the  present  case,  and  the  fact  does  not  appear, 
but  it  is  only  found  that  the  acts  complained  of,  were  done  by  officers 
of  the  cit}',  the  Court  are  of  opinion  that  the  verdict  must  be  set  aside 
and  a  new  trial  granted. 


SHAW,  C.  J.,  IN  ANTHONY  v.  INHABITANTS  OF  ADAMS. 

1840.     1  Metcalf  {Massachusetts),  284,  pp.  285,  286. 

One  question  discussed  was,  whether  an  action  sounding  in  tort 
would  lie  against  a  municipal  corporation.  We  can  have  no  doubt, 
that  an  action  upon  the  case  will  lie  against  municipal  corporations, 
when  such  corporations  are  in  the  execution  of  powers  conferred  on 
them,  or  in  the  performance  of  duties  required  of  them  by  law,  and 
their  officers,  servants  and  agents,  shall  perform  their  acts  so  carelessh', 
unskilfully  or  improperly,  as  to  cause  damage  to  others.  This  falls 
within  the  very  general  principle,  that  the  superior  or  employer  shall  be 
answerable  civiliter  for  the  mismanagement  and  negligence  of  the 
agent  employed  by  him,  b}'  which  another  is  damnified.  Sutton  v. 
Clarke^  6  Taunt.  29.  And  although  such  action  sounds  in  tort,  to 
mark  the  distinction  between  this  and  an  action  upon  contract ;  yet  the 
true  view  of  considering  it,  is  that  of  a  legal  liability  to  indemnify 
another  against  negligence  of  one  for  whom  the  law  holds  him  respon- 
sible. It  implies  no  wilful  act,  or  intended  wrong,  and,  therefore, 
requiring  no  vote  or  corporate  act  to  create  the  liability,  it  ma}'  as  well 
lie  against  a  corporation  as  an  individual  person.  We  think  it  stands 
on  the  same  footing  on  which  it  is  now  held,  both  in  this  countr}-  and 
in  England,  contrary  to  the  ancient  notions  on  that  subject,  that  cor- 
porations may  be  liable  on  implied  promises  raised  b}'  law  from  their 
legal  liabilities.  Gray  v.  Portland  Bank,  3  Mass.  364.  Bank  of 
Columbia  v.  Patterson,  7  Cranch,  299.  Clark  v.  Mayor,  &c.  of 
Washington,  12  Wheat.  40.  Beverley  v.  Lincoln  Gas  Light  Band 
Coke  Co.,  6  Adolph.  &  EUis,  829.  But  where  individuals,  although 
professing  to  act  under  color  of  authority  from  municipal  corporations, 
do  acts  which  are  injurious  to  others,  if  the  objects  and  purposes  which 
they  propose  to  accomplish,  are  not  within  the  scope  of  the  corporate 


]l^ 


136  MILES   V.  CITY    OF   WORCESTER. 

powers  of  towns,  and  not  done  in  the  execution  of  any  corporate 
dut}'  imposed  upon  tiie  town  b}-  law,  the  town  is  not  liable  for  the 
damages  occasioned  by  such  acts.  Were  it  otherwise,  towns  might  be 
rendered  responsible  upon  implied  liabilities,  in  cases  where  they  could 
not  bind  themselves,  as  a  corporation,  by  an  express  vote  of  the  inhab- 
itants. For,  it  is  now  well  settled  that  a  town,  in  its  corporate  capa- 
city, will  not  be  bound,  even  b}'  the  express  vote  of  a  majority,  to  the 
performance  of  contracts,  or  other  legal  duties  not  coming  within  the 
scope  of  the  objects  and  purposes  for  which  the}'  are  incorporated. 
Stetson  V.  Kempton,  13  Mass.  272.  Norton  v.  Mansfield,  16  Mass. 
48.     Parsons  v.  Goshen,  11  Pick.  396. 

Looking  at  the  declaration  in  the  present  case,  it  is  not  shown  that 
the  town  was  under  any  obligation,  in  its  corporate  capacity,  to  erect 
and  build  this  highway,  or  that  the  dam  complained  of  was  a  part  of 
the  liigbwa}',  or  that  the  damage  complained  of  resuljtedfrom  the  neg- 
ligence of  the  agents  and  officers  of  the  town,  in  the  performance  of 
any  corporate  duty.  The  court  are,  therefore,  of  opinion  that  the 
action  cannot  be  maintained. 


MILES  V.  CITY  OF  WORCESTER. 

1891.     154  Mass.  511.1 

Tort  for  damages  occasioned  by  an  encroachment  upon  the  plaintiflTs 
land  of  a  wall  erected  between  the  same  and  an  adjoining  lot  belonging 
to  the  defendant  city. 

There  was  evidence  that  about  the  year  1871,  the  city  built  a  wali 
on  the  south  side  of  its  high  school  lot  between  it  and  the  plaintiff's 
lot,  which  were  then  at  the  same  grade,  upon  a  line  mutually  agreed 
upon,  and  proceeded  to  fill  up  its  land  to  a  level  as  high  as  the  top 
of  the  wall,  or  even  higher ;  that  the  wall  since  it  was  built  had  been 
pressed  out  of  position  by  reason  of  the  weight  of  the  filling  behind  it, 
or  by  the  action  of  surface  water  or  frost,  so  that  for  nearly  or  quite  a 
foot  at  the  bottom  it  had  bulged  out  and  come  upon  the  plaintiff's  land  ; 
and  that  this  bulging  out  of  the  wall  had  increased  within  six  years 
before  the  date  of  the  writ,  and  had  gradually  affected  the  plaintiff's 
estate. 

The  judge  instructed  the  jury,  in  substance,  that  if  the  plaintiff  by 
reason  of  the  encroachment  of  the  wall  had  been  kept  out  of  posses- 
sion and  occupation  of  a  part  of  his  land,  and  if  within  six  years 
before  the  date  of  the  writ  the  city  had  allowed  or  suffered  the  wall 
to  be  pushed  and  crowded  upon  the  plaintiff's  land,  creating  a  nuisance 
thereto,  causing  him  special  and  peculiar  damage,  then  there  was  a 

1  Statement  abridged.  —  Ed. 


MILES   V.   CITY   OF   WORCESTER.  137 

liabilit}'  in  an  action  of  tort  as  for  a  nuisance,  no  other  objection  exist- 
ing to  a  recovery. 

Verdict  for  plaintiff.     Defendant  excepted. 

F.  P.  Goulding,  for  defendant. 

W.  S.  B.  Hopkins  {F.  B.  Smith  with  him),  for  the  plaintiff. 

Allen,  J.  It  is  obvious  that  the  defendant's  wall,  in  its  present 
position  upon  the  plaintiff's  land,  must  be  deemed  an  actionable  nui- 
sance, unless  the  defendant  can  claim  exemption  from  responsibility  on 
some  special  ground.  Codman  v.  Fvans,  7  Allen,  431.  Nichols  v. 
Boston,  98  Mass.  39,  43.  Fay  v.  Prentice,  1  C.  B.  828.  The 
defendant  suggests  that  it  is  not  liable,  because  the  wall  was  built  and 
maintained  solelj-  for  the  public  use,  and  with  the  sole  view  to  the  gen- 
eral benefit  and  under  the  requirement  of  general  laws  ;  and  that  the 
case  cannot  be  distinguished  in  principle  from  the  line  of  cases  begin- 
ning with  Hill  v.  Boston,  122  Mass.  344,  and  ending  with  Howard  \. 
Worcester,  153  Mass.  426.  We  are  not  aware,  however,  that  it  has 
ever  been  held  that  a  private  nuisance  to  property  can  be  justified  or 
excused  on  that  ground.  The  verdict  shows  a  continuous  occupation 
of  the  plaintift''s  land  by  the  encroachment  of  the  defendant's  wall. 
The  question  of  negligence  in  the  building  of  the  wall  is  not  material. 
The  erection  was  completed,  and  was  accepted  b}-  the  defendant,  and 
is  now  in  the  defendant's  sole  charge  ;  and  if  it  is  a  nuisance,  the  defend- 
ant is  responsible.  Staple  v.  Spring,  10  Mass.  72,  74.  Nichols  v. 
Boston,  98  Mass.  39.  Such  an  occupation  of  the  plaintifl^s  land  can- 
not be  excused  for  the  reasons  assigned.  A  cit}'  cannot  enlarge  its 
school  grounds  by  taking  in  the  land  of  an  adjoining  owner  b}'  means 
of  a  wall  or  fence.  The  public  use  and  the  general  benefit  will  not 
justify  suf'h  n  nnisnnpp  tn  tiu>  prnpr.Tty  of  another.  If  more  land  is 
needed,  it  must  be  taken  in  the  regular  way,  and  compensation  paid, 
but  if,  by  the  action  of  the  elements  or  otherwise,  without  the  plaintiffs 
fault,  the  defendant's  wall  comes  upon  the  plaintiff's  land  and  con- 
tinues there,  it  becomes  a  nuisance  for  which  the  defendant  is  responsi- 
ble ;  and  so  are  the  authorities.  Gorham  v.  Gross,  125  Mass.  232, 
239.  Khron  v.  Brock,  144  Mass.  516.  Eastman  v.  Meredith,  36  IST. 
H.  284,  296.  Hay  v.  Cohoes  Co.  2  Corast.  159.  Tremain  v.  Gohoes 
Co.  2  Comst.  163.  Weet  v.  Brockport,  16  N.  Y.  161,  172,  note.  St. 
Peter  v.  Denison,  58  N.  Y.  416,  421.  Mayor  &  City  Council  oj 
Cumberland  v.  Willison,  50  Md.  138.  Harper  v.  Milwaukee,  30  Wis. 
365.  Pumpelly  v.  Green  Bay  Co.  13  Wall.  166,  181.  Dillon  Mun. 
Corp.  §  985. 

The  case  is  distinguishable  from  Middlesex  Co.  v.  McCue,  149  Mass. 
103,  where  soil  from  the  defendant's  land  upon  a  hillside  was  washed 
into  the  plaintiffs  mill-pond  by  the  rains,  when  the  defendant  had  built 
no  artificial  structure,  and  had  done  nothing  more  than  to  cultivate  his 
land  in  the  ordinaiy  way.  Exceptions  overruled. 


138  WORDEN   V.   CITY   OF   NEW   BEDFORD. 

WORDEN  V.    CITY  OF  NEW  BEDFORD. 

1881.     131  Massachusetts,  23.1 

Tort  for  personal  injuries  occasioned  to  the  plaintifif  by  falliug  through 
a  trap-door  in  a  room  in  a  public  building  in  the  defendant  city,  known 
as  the  City  Hall."  Answer,  a  general  denial.  At  the  trial  in  the  Su- 
perior Court,  before  Brigham,  C.  J.,  the  juiy  returned  a  verdict  for 
the  plaintiff ;  and  the  defendant  alleged  exceptions,  the  substance  of 
which  appears  in  the  opinion. 

The  case  was  argued  at  the  bar,  and  was  afterwards  submitted  on 
additional  briefs,  by  F.  A.  Milliken,  for  the  defendant,  and  £J.  L.  Bar- 
ney^ for  the  plaintiff. 

Morton,  J.  Under  the  instructions  given  them,  the  jury  must  have 
found  that  the  city  of  New  Bedford  was  the  owner  of  a  building  known 
as  the  City  Hall,  used  for  the  ordinarj-  municipal  purposes  ;  that  it  had 
been  accustomed  to  let  it,  for  profit,  for  lectures,  exhibitions,  amuse- 
ments and  other  like  purposes,  having  no  relation  to  municipal  affairs 
or  interests  ;  that  at  the  time  the  injury  happened  to  the  plaintiff  it  had, 
acting  by  its  committee  on  public  property,  let  the  hall  and  a  smaller 
room  adjoining,  for  profit,  to  the  Southern  Massachusetts  Poultry  Asso- 
ciation ;  that  the  sum  paid  by  the  association  included  compensation 
for  the  lighting  and  heating  the  rooms  and  for  the  services  of  the  jani- 
tor, who,  by  appointment  of  the  cit\-,  had  the  care  of  the  building; 
that  the  plaintiff  was  injured  solely  by  the  carelessness  of  the  janitor, 
while  doing  acts  in  the  lighting  and  heating  of  the  rooms ;  and  that 
the  plaintiff  was  rightfully  in  the  rooms  and  using  due  care  when  he 
received  the  injury.  These  facts  are  sufficient  to  establish  the  liabilit}' 
of  the  city. 

A  city  or  town  is  not  liable  to  a  private  citizen  for  an  injury  caused 
by  any  defect  or  want  of  repair  in  a  cit}'  or  town  hall  or  other  public 
building  erected  and  used  solely  for  municipal  purposes,  or  for  negli- 
gence of  its  agents  in  the  management  of  such  buildings.  This  is 
because  it  is  not  liable  to  private  actions  for  omission  or  neglect  to 
perform  a  corporate  duty  imposed  by  general  laws  upon  all  cities 
and  towns  alike,  from  the  performance  of  which  it  derives  no  compen- 
sation. 

But  when  a  citxiir.iQwn_dQes,JiQt..ik.YQte  .sijck  l»uildJLag_fixelH§iYely 
tf)  iiiniiicipul  uses,  but  lets  it  or  a  part  of  it  for  its  own  advantage  and 
emoliiincut,  ))y  receiving  rents,  or  otherwise,  it  is  liable  while  it  is  so 
l?'t  ill  the  same  manner  as  a  private  owner  would  be.  Olircr  v.  Wor- 
cester, 102  Mass.  4«y.     Ilillw.  Boston,  122  Mass.  344. 

But  the  defendant  contends  that  a  city  or  town  has  no  power  to  let 
its  public  buildings  for  private  uses,  that  the  letting  to  the  poultry  asso- 
ciation, if  made  by  the  city,  was  ultra  vires,  and  therefore  it  is  not 

1  Only  so  much  of  the  opinion  is  given  as  relates  to  a  single  point.  —  Ed. 


MILLS   V.    CITY   OF  BROOKLYN. 


139 


liable.  This  ground  is  untenable.  The  city  could  not  erect  buildings 
for  business  or  speculative  purposes,  but  having  a  cit}-  hall,  built  in 
good  faith  and  used  for  municipal  purposes,  it  has  the  right  to  allow  it 
to  be  used  incidental!}-  for  other  purposes,  either  gratuitously  or  for  a 
compensation.  Such  a  use  is  within  its  legal  authority,  and  is  common 
in  most  of  our  cities  and  towns.     French  v.  Quincy,  3  Allen,  9. 

We  are  therefore  of  opinion  that,  upon  the  facts  proved  in  this  case, 
the  defendant  was  liable  ;  it  was  dealing  with  the  city  hall,  not  in  the 
discharge  of  a  public  dut}-,  but  for  its  own  benefit  and  gain  in  a  private 
enterprise,  in  the  same  wa}'  as  a  private  owner  might,  and  was  liable 
for  negligence  in  the  management  of  the  property  to  the  same  extent 
as  such  private  owner  would  be.  Exceptions  overruled. 


MILLS   V.    CITY  OF   BROOKLYN. 

1865.     32  New  York,  489.1 

Denio,  C.  J.  .  .  .  The  grievance  of  which  the  plaintiffs  complain,  is 
that  sufficient  sewerage  to  carry  off  the  surface  water  from  their  lot  and 
house  has  not  been  provided.  A  sewer  of  a  certain  capacity  was  built, 
but  it  was  insufficient  to  carry  off  all  the  water  which  came  down  in  a  rain 
storm,  and  the  plaintiffs'  premises  were,  to  a  certain  extent,  unprotected. 
Their  condition  was  certainl}'  no  worse  than  it  would  have  been  if  no 
sewer  at  all  had  been  constructed.  So  far  as  the  one  laid  down  operated, 
it  relieved  the  plaintiffs'  lot ;  but  the  relief  was  not  adequate.  If  the 
defendants  would  have  been  liable  if  they  had  done  nothing,  they  are 
of  course  liable  for  the  insufficient  character  of  the  work  which  was 
constructed. 

But  it  is  not  the  law  that  a  municipal  corporation  is  responsible  in  a 
private  action  for  not  providing  sufficient  sewerage  for  every,  or  for  any 
part  of  the  citj'  or  village.  The  duty  of  draniing  the  streets  and  ave- 
nues of  a  city  or  village,  is  one  requiring  the  exercise  of  deliberation^ 
judgment  and  discretion.  It  cannot,  in  the  nature  of  things,  be  so 
executed  that  in  every  single  moment  every  square  foot  of  the  surface 
shall  be  perfectly  protected  against  the  consequence  of  water  falling 
from  the  clouds  upon  it.  This  dut}'  is  not,  in  a  technical  sense,  a  judi- 
cial  one,  for  it  does  not  concern  the  administration  of  justice  between 
citizens  ;  but  it  is  of  a  judicial  nature,  for  it  requires,  as  I  have  said, 
the  same  qualities  of  deliberation  and  judgment.  It  admits  of  a  choice 
of  means,  and  the  determination  of  the  order  of  time  in  which  improve- 
ments shall  be  made.  It  involves,  also,  a  variety  of  prudential  con- 
siderations relating  to  the  burdens  which  may  be  discreetly  imposed  at 
a  given  time,  and  the  preference  which  one  locality  may  claim  ovei 

1  Statement  and  arguments  omitted  ;  also  portions  of  opinion.  •     " 


<^lJLKjjfcl    ^ 


140 


MILLS   V.    CITY   OF   BROOKLYN. 


another.  If  the  owner  of  property-  may  prosecute  the  corporation  on 
the  ground  that  sufficient  sewerage  has  not  been  provided  for  his  prem- 
ises, all  these  questions  must  be  determined  by  a  jury,  and  thus  the 
judgment  which  the  law  has  committed  to  the  city  council,  or  to  an 
administrative  board,  will  have  to  be  exercised  by  the  judicial  tribunals. 
The  court  and  jury  would  have  to  act  upon  a  partial  view  of  the  ques- 
tion, for  it  would  be  impossible  that  all  the  varied  considerations  which 
might  bear  upon  it  could  be  brought  to  their  attention  in  the  course  of 
a  single  trial.  Such  a  system  of  law  would  be  as  vexatious  in  prac- 
tice as  it  is  unwarranted  in  law.  It  has  been  frequently  invoked,  but 
never,  I  believe,  with  success. 


It  may,  therefore,  be  laid  down  as  a  ver}"  clear  proposition,  that  if 

no  sewer  had  been  constructed  at  the  locality  referred  to,  an  action 

70u\d  not  lie  against  the  corporation,  though  the  jury  should  find  that 

.)ne  was  necessary,  and  that  the  defendants  were  guilt}"  of  a  dereliction 

pf  duty  in  not  having  constructed  one. 

But  the  defendants  put  down  a  sewer  which  was  insufficient  to  carry 
off  all  the  surface  water  which  fell  during  a  violent  shower.  There  was 
no  want  of  skill  in  constructing  it ;  simply  it  was  not  sufficient!}-  large. 
The  evidence  was  that  it  could  not  have  been  made  larger  on  account 
of  the  grade  and  size  of  the  system  of  sewers  with  which  it  connected, 
and  through  which  the  water  had  to  be  carried  off.  The  evidence  as 
to  this  was  entirely  uncontradicted  ;  and  there  was  nothing  intrinsic- 
ally improbable  in  the  assertion.  Unless  the  defendants  were  respon- 
sible for  the  want  of  judgment  upon  which  that  system  was  devised,  I 
do  not  see  why  this  evidence  was  not  a  complete  answer  to  the  action ; 
and  that  the}'  were  not  responsible  for  that,  follows  from  what  has 
already  been  said.  Very  many  considerations  besides  the  protection 
of  the  land  upon  which  the  plaintiffs'  house  was  erected,  no  doubt 
entered  into  the  question  when  that  system  was  determined  upon.  It 
is  inferable  from  the  evidence  that  the  plaintiffs'  land  was  then  vacant 
and  unimproved,  and  that  the  adjacent  streets  had  not  been  graded. 
While  that  state  of  things  existed  it  was  seen  that  the  surface  water 
was  absorbed  by  the  earth,  and  injured  no  one.  No  doubt  public 
improvements,  in  a  growing  town,  ought  to  be  made  with  a  certain 
reference  to  anticipated  changes.  But  it  would  require  a  degree _of 
wisdom  and  foresight  not  usually  met  with  in  public  offi'iers,  to  adjust 
^  and  ap[)ly  the  expenditures  for  public  purposes  so  perfectly  thai  no_ 
I  deficiency  or  redundancy  would  ever  be  found  to  exist.  It  is  a  wise 
nrovision  of  the  law  that  an  action  for  damages  does  not  lie  for  such 


rrors  of  judgment  on  the  part  of  the  agents  of  the  public, 

[Certain  im|,tiiy;iii^  referred  to]  are  all  cases  where  the  injury  was 
either  the  result  of  suffering  a  municipal  work  to  be  out  of  repair,  or 
where  the  defendants  had  done  acts  which  wore  in  tliemselves  positive 
nuisances.     They  furnish  no  [n-onnd  for  fao|^]ino-  p.  ^j^iinimpnl  cnrj^^ay- 


BARTON  V.   CITY   OF  SYRACUSE.  141 

tion  responsible  for  not  providing;  suitable  sewerage,  whetbor  t.hf;  nf,o^ 
leet  was  total,  or  partial  onljf  arisititr  from  the  insufficiency  of  a  sewer 
Fo  discharfre  all  the  water  whieli  it  was  intended  to  carry  otT. 

The  questions  in  this  case  were  raised  b}-  the  motion  to  dismiss,  on 
account  of  the  insufficiency  of  the  complaint,  which  did  not,  according 
to  the  foregoing  views,  set  forth  a  cause  of  action,  and  by  one  of  the 
points  taken  at  the  close  of  the  trial. 

I  am  in  favor  of  reversing  the  judgment  of  the  Supreme  Court  [which 
was  in  favor  of  plaintiff],  and  ordering  a  new  trial. 

Judgment  reversed  and  new  trial  ordered. 


V^ 


IUJL.A 


BARTON   V.   CITY   OF   SYRACUSE. 

1867.     36  New  York,  54. 

BoCKES,  J,  This  is  an  action  on  the  case  for  negligence,  in  which 
the  defendant  is  charged  with  culpability'  in  omitting  to  Iveep  a  sewer 
in  proper  repair,  and  in  suffering  it  to  become  filled  with  dirt  and 
rubbish,  by  reason  of  which  the  flow  of  tlie  water  was  impeded,  causing 
it  to  set  back  through  the  plaintiffs  drain  into  his  cellar,  to  the  injury 
of  his  property. 

The  referee,  to  whom  the  case  was  referred  to  hear  and  determine, 
directed  judgment  for  the   plaintiff,  which  judgment  was  affirmed  at  ^'^^'^-^-   U 
General  Term.  >-"^-oJ>iL«k. 

By  the  cit}-  charter,  the  mayor  and  common  council  were  authorized  '^'^"^'■^A-'~-5l 
and  directed  to  construct  sewers  through  the  city,  and  to  keep  them  in  ^'^-^^  SjJ^ 
repair.  The}'  accepted  and  entered  upon  the  performance  of  this<a.  ^■*-«^k.^v>^ 
duty,  and  constructed  sewers  along  such  of  the  streets  as  were  deemed cxoj^  oJtus- 
appropriate,  with  a  view  to  favorable  and  healthful  drainage.  The  \>-o  ^h 
expenses  were  assessed  upon  the  property-  benefited,  as  provided  by  *Vbv  '  ^ 
the  charter,  and  their  supervision  and  control  were  properly  assumed  ^T^^^l^^'^f^  • 
by  the  city  government.  Under  this  condition  of  authority  and  dut}',^  Ov^^  ^^ 
the  municipal  corporation  were  bound,  through  the  proper  officers,  to  ^-^^>'^-*' 
a  faithful  and  prudent  exercise  of  power,  and  carelessness  and  neg- 
ligence in  that  regard  created  a  liability,  which  might  be  enforced  b\- 
any  one  suffering  damages  tlierefrom.  So  the  law  is  firml}'  established, 
that  in  constructing  sewers,  and  in  keeping  them  in  repair,  a  municipal 
corporation  acts  iiiiiiistcri:ill\-.  and.  having  the  authority  to  do  the  act, 
IS  b(nnul  to  the  exercise  of  iieedfLil  prudence,  watchfulness  and  care. 
Tlie  autliorities  in  snpport  of  these  principles  are  too  numerous  and 
familiar  to  require  particular  comment. 

[Remainder  of  opinion  omitted.] 

p.  Judgment  affirmed 


142 


ASHLEY   V.   CITY   OF   POET  HURON. 


J 


i 


V 


ASHLEY  V.   CITY  OF  PORT  HURON.    ^ 

1877.     35  Michigan,  296.1 

CooLET,  C.  J.  The  action  iu  this  case  was  Instituted  to  recover 
damages  for  an  injury  caused  to  the  house  of  the  plaintiff  by  the  cut- 
ting of  a  sewer  under  the  direction  of  the  city  authorities,  and  under 
city  legislation,  the  validity  of  which  is  not  disputed.  The  necessary 
result  of  cutting  the  sewer,  the  plaintiff  claims,  was,  to  collect  and 
throw  large  quantities  of  water  upon  his  premises  which  otherwise 
would  not  have  flowed  upon  them  ;  and  it  is  for  an  injury  thereby 
caused  that  he  sues.  The  evidence  offered  on  the  part  of  the  plain- 
tiff tended  to  establish  the  case  he  declared  upon,  but  the  court 
instructed  the  jury  that  though  they  should  find  the  facts  to  be  as  the 
plaintiff  claimed,  they  must  still  return  a  verdict  for  the  defendant. 
The  ground  of  this  decision,  as  we  understand  it,  was,  that  the  cit}-,  in 
ordering  the  construction  of  the  sewer  and  in  constructing  it,  was  act- 
ing in  the  exercise  of  its  legislative  and  discretionary  authorit}',  and 
was  consequently  exempt  from  any  liability  to  persons  who  might 
happen  to  be  injured.  That  is  the  ground  that  is  assumed  by  counsel 
for  the  city  in  this  court,  and  it  is  supposed  to  be  the  ground  on  which 
the  case  was  decided  in  the  court  below. 

In  Pontiac  v.  Garter^  32  Mich.,  164,  the  question  of  the  liability  of 
a  municipal  corporation  for  an  injury  resulting  from  an  exercise  of  its 
•  legislative  powers  was  considered,  and  it  was  denied  that  any  liability 
could  arise  so  long  as  the  corporation  confined  itself  within  the  limits 
of  its  jurisdiction.  That  was  a  case  of  an  incidental  injury  to  property 
v^v-^^V^  caused  by  the  grading  of  a  street.  The  plaintiff's  premises  were  in  no 
^^r\^^  way  invaded,  but  they  were  rendered  less  valuable  by  the  grading,  and 
^^I^  there  was  this  peculiar  hardship  in  the  case,  that  the  injury  was  mainly 
^**T*^  or  wholly  owing  to  the  fact  that  the  plaintiff's  dwelling  had  been  erected 

^^  with  reference  to  a  grade  previously  established  and  now  changed.     In 

the  subsequent  case  of  City  of  Detroit  v.  Beckman,  34  Mich.,  125,  the 
"^^  same  doctrine  was  reaffirmed.  That  was  a  case  of  injury  by  being  over- 
^'^t^  turned  in  a  street  in  consequence  of  what  was  claimed  to  be  an  insuflfi- 
^^  ^  cient  covering  of  a  sewer  at  a  point  where  two  streets  crossed  each 
'.TNSuiAOi&other.  It  was  counted  upon  as  a  case  of  negligence,  but  the  negligence 
^^^^^^jj^^^^^^  consisted  only  in  this,  that  the  city  had  failed  to  provide  for  covering 
^"^^^^^the  sewer  at  the  crossing  of  a  street  for  such  a  width  as  a  proper  re- 
"*"^-*~^^'^'  gard  for  the  safety  of  people  passing  along  the  street  would  require. 
^-^  ^  If  this  case  is  found  to  be  within  the  principle  of  the  cases  referred  to, 
0^i_Cv^    the  ruling  below  must  be  sustained,  and  tliat,  we  think,  is  the  only 

'    question  we  have  occasion  to  discuss. 
'^*^'  "^"^         The   cases   that   bear    upon   the    precise   point    now   involved    are 
'v\.^^  ^     numerous. 


1  Citations  of  counsel  omitted.  —  Ed. 


ASHLEY  V.    CITY  OF  PORT  HURON.  143 

In  Rochester  White  Lead  Co.  v.  Rochester,  3  iV!  Yi,  463,  the  city 
was  made  to  respond  in  damages  for  flooding  private  premises  witii 
waters  gathered  in  a  sewer.  This  case  is  commented  on  in  Mills  v. 
Brooklyn,  32  iVi  T'.,  489,  and  distinguished  from  one  in  which  the  in- 
jury complained  of  arose  from  the  insufficiency  of  a  sewer  which  was 
constructed  in  accordance  with  the  plan  determined  upon.  Obviously 
the  complaint  in  that  case  was  of  the  legislation  itself,  and  of  incidental 
injuries  which  it  did  not  sufficiently  provide  against.  The  like  ipjuries 
might  result  from  a  failure  to  construct  anj-  sewer  whatever  ;  but  clearly 
no  action  could  be  sustained  for  a  mere  neglect  to  exercise  a  discretion- 
ary authoritv. — Compare  Smith  v.  Mayor,  etc.,  Q  N.  IT.  Sup.  Ct. 
(T.  &  C),  685  ;  4  Hun,  637  ;  Mms  v.  Mayor,  etc.,  59  JV.  Y.,  500. 
Cases  of  flooding  lands  by  neglect  to  keep  sewers  in  repair,  of  which 
Barton  V.  Syracuse,  37  Barb.,  292,  and  36  JST.  Y.,  54,  is  an  instance, 
are  passed  by,  inasmuch  as  it  is  not  disputed  by  counsel  for  the  defend- 
ant in  this  case  that  for  negligent  injuries  of  that  description  the  corpo- 
ration would  be  responsible.  Those  cases  are  supposed  b}-  counsel  to 
be  distinguished  from  the  one  before  us  in  this  :  that  here  the  neglect 
complained  of  was  onl}'  of  a  failure  to  exercise  a  legislative  function, 
and  thereb}-  provide  the  means  for  carrying  off  the  water  which  the 
sewer  threw  upon  the  plaintiff's  premises.  The  distinction  is,  that  the 
obligation  to  establish  and  open  sewers  is  a  legislative  duty,  while 
the  obligation  to  keep  them  in  repair  is  ministerial.  But  it  is  pot 
strictly  tlie.j'aiLurfi-  ta-COJQsLruct  sewers  to  carry  off  tlic  water  that  is  com- 
rjzinf^d  ^^  "^-4u8-ciue.;^  il  is  of  tue  positive  act  of  casting  water  upon 
the  plaijtlff..s  premises  by  the  sewer  already  constructed. 

II After    citing    cases    where   an   action   like   the   present   was   sus- 
tained.] 

It  is  very  manifest  from  this  reference  to  authorities,  that  they  recog- 
nize in  municipal  corpoi'ations  no  exemption  from  responsibility  where 
the  injury  an  individual  has  received  is  a  direct  injury  accomplished  bv 
g.  corporate  act  which  is  in  the  nature  of  a  trespass  upon  him.  The 
right  of  an  individual  to  the  occupation  and  enjoyment  of  his  premises 
is  exclusive,  and  the  public  authorities  have  no  more  liberty  to  trespass 
upon  it  than  has  a  private  individual.  If  the  corporation  send  people 
with  picks  and  spades  to  cut  a  street  through  it  without  first  acquiring 
the  right  of  way,  it  is  liable  for  a  tort ;  but  it  is  no  more  liable  under 
such  circumstances  than  it  is  when  it  pours  upon  his  land  a  flood  of 
water  by  a  public  sewer  so  constructed  that  the  flooding  must  be  a 
necessar}-  result.  The  one  is  no  more  unjustifiable,  and  no  more  an 
actionable  wrong,  than  the  other.  Each  is  a  trespass,  and  in  each  in- 
stance the  city  exceeds  its  lawful  jurisdiction.  A  municipal  charter 
never  gives  and  never  could  give  authority  to  appropriate  the  freehold 
of  a  citizen  without  compensation,  whether  it  be  done  through  an  actual 
taking  of  it  for  streets  or  buildings,  or  by  flnodincy  it  so  as  to  interfere 
with  the  owner's  possession.  His  property  right  is  appropriated  in  the 
one  case  as  much  as  in  the  other.  —  Pimipelly  v.  Greoi  Bay  Co.,  13 


144 


NEVINS   V.    CITY   OF    PEORIA. 


Wall.,  166;  Arimond  v.  Green  Bay,  etc.,  Co.,  31    Wis.,  316;  Eaton 
V.  B.  C.  &  M.  B.  R.  Co.,bl  N.  II.,  504. 

A  like  excess  of  jurisdiction  appears  when  in  the  exercise  of  its 
powers  a  municipal  corporation  creates  a  nuisance  to  the  injury  of  an 
individual.  The  doctrine  of  liability  in  such  cases  is  familiar  and  was 
acted  upon  in  Pennoyer  v.  Saginaw,  8  Mich.,  534. 

Judgment  reversed.     New  trial  ordered. 


LAWRENCE,    J.,   IN   NEVINS   v.   CITY   OF  PEORIA. 

J866.     41  Illinois,  bQ2,  pp.  508,  509,  511,  512,  515. 

Lawrence,  J.  .  .  .  The  cit}^  is  the  owner  of  the  streets,  and  the 
legislature  has  given  it  power  to  grade  them.  But  it  has  no  more 
power  over  them  than  a  private  individual  has  over  his  own  land,  and 
it  cannot,  under  the  specious  plea  of  public  convenience,  be  permitted 
to  exercise  that  dominion  to  the  injury  of  another's  propert}'  in  a  mode 
that  would  render  a  private  individual  responsible  in  damages,  without 
t)eing  responsible  itself.  Neither  State  nor  municipal  pj'overnment  can 
take  private  property  for  public  use  without  due  compensation,  and 
this  Leni^ii _p.ro vision  of  our  Constitution  is  to  be  applied  by  the  coiTHs 
whenever  tTieT^roperty  of  the  citizen  is  invaded,  and  without  reference 
to  the  degre^  We  can  solve  more  easily  and  saiely  quesiions  oi  this 
character  if  we  take  pains  to  free  our  minds  from  the  false  notion 
that  a  municipality  has  some  indefinable  element  of  sovereign  power 
which  takes  from  the  property  of  the  citizen,  as  against  its  aggressions, 
the  protection  enjoyed  against  the  aggressions  of  a  natural  person. 

VvvjS.^^^  ........ 

xsl^  »^  It  is  said  that  the  cit}'  must  grade  streets  and  direct  the  flow  of 
'^^^-s^^  waters  as  best  as  it  can  for  the  interests  of  the  public.  Undoubtedly, 
-d'^wyw  but  if  the  public  interest  requires  that  the  lot  of  an  individual  shall  be 
►-^»ir  rendered  unfit  for  occupancy,  either  wholly  or  in  part,  in  this  process 
^^  -  .  of  grading  or  drainage,  why  should  not  the  public  pa}'  for  it  to  the 
'  ^T^'^'^'^^^ixteut  to  which  it  deprives  the  owner  of  its  legitimate  use?  Why  does 
/  7^  not  the  constitutional  provision  apply  as  well  to  secure  the  payment  for 
'■^^^^-^  property-  partially  taken  for  the  use  or  convenience  of  a  street,  as  when 
wholl}'  taken  and  converted  into  a  street?  Surely  the  question  of  the 
degree  to  which  the  property  is  taken  can  make  no  difference  in  the 
a[)plication  of  the  principle.  .  To  the  extent  to  which  the  owner  is 
_  deprived  of  its  legitimate  use  and  as  its  value  is  impaired,  to  that 
J  .  '  extent  he  should  be  paid. 

^^^^^,  There  is  much  conflict  of  authority  upon  this  question,  and  those 
*"^*A.  courts  which  have  taken  a  view  dilferent  from  our  own,  rest  their  con- 
'''"*-^-         elusions  in  part  upon  the  doctrine  of  public  necessitj',  and  the  impor- 


Vjv^-.^^Ok../s3>u£i^. 


NEVINS   V.   CITY   OF   PEOKIA. 


145 


tance  of  preserving  unimpaired,  for  purposes  of  public  improvement, 
the  efficienc}'  of  municipal  corporations.     In  our  opinion,  the  theory  \ 
that  private  rights  are  ever  to  be  sacrificed  to  public  convenience  or  ( 
necessity,  without  full  compensation,  is  fraught  with  danger,  and  should  ( 
find  no  lodgment  in  American  jurisprudence.     To  prevent  this  was  the  ( 
object  of  some  of  the  most  important  of  our  constitutional  guaranties.  / 
The  property  of   the  majority  who  control  the   government  is  in  no 
peril ;    it  is  that  of  a  feeble  minorit}-  which  is  in  danger,  and  when- 
ever that  is  sought  to  be  taken  in  a  time  of  peace,  under  pretense  of 
public  necessity  or  convenience,  the  owner  must  find  protection  in  the 
courts,  or  our  institutions  have    failed   of  their   great  purpose  —  the 
complete  security-  of  private  rights.     It  is  undoubtedly  important,  as 
urged  in  the  argument,  that  our  cities  should  improve  rapidly,  and  be 
able  to  carry  onward  large  systems  of  drainage  and  grading,  but,  in 
the  attainment  of  these  ends,  they  cannot  be  permitted  to  sacrifice  the  I 

property  of  the  humblest  citizen  without  compensation.     Neither  is  it  1 

true  that  the  rule  we  lay  down  will  interfere  with  the  growth  of  cities,  | 

as  the  expense  of  grading  is  not  very  largeh'  increased  b}'  the  con- 
struction of  proper  gutters  and  culverts  for  the  flow  of  water. 

Thus  the  cases  divide   themselves   into   two  classes,  one,  and  the 
larger  class,  holding  that  a  city  is  only  held  to  reasonable  care  and  ^ 
skill  in  grading  its  streets,  and  that  if  these  are"  used,  it  can  shield  ^^  <S*r-' 
itself  under  its  comnrfltft  ^n^^yp  from  jiability  to  Individuals,  the  other 
holding  mat  a  city  in  the  management  of  corporate  property  must  be*\ 
held  to  the  s^e  rcsponsiDilities  thaC"  attach  16  individuals  lor  injury  to  ( 
The  pro'iiertv  of  OLhet's.     We  (^ahnot  doilbt  that  the  latter  is  flip  sonndpr  V 
riile.     We  are  unable  to  see  why  the  property  of  an  individual  should 
be  sacrificed  for  the  public  convenience  without  compensation.     We  do 
not  think  it  sufficient  to  call  it  damnum  absque  injuria.     We  know 
our  Constitution  was  designed  to  prevent  these  wrongs.     We  are  of<_;^_^ 
opinion,  that,  Jtor  injuries  done  to  the  property  of  the  appellant  in  the-^^^^^^J'^'C^ 
case  before  u^H^y  turning  a  stream  of  mud  and  water  upon  his  prem-  C.  Vl. ^"^^ 
,ises,  Cff^^v  creating  in  the  immediate  neighborhood  of  his  dwelling  an  W -^^^C*^ 
offensive  and  unwholesome  pond,  if  the  jury  find  these  things  to  have ^ ^^^-o^x^ 
been  done,  the  city  of  Peoria  must  respond  in  damages.  1  .  V5CtL«. 
\jov  •  ^-olc/^^  .  V*^ey*? 


r 


u 


146  KEASY   V.   CITY   OF   LOUISVILLE. 

KEASY  V.   CITY  OF   LOUISVILLE. 

1836.     4  Dana  (Kentucky),  154. 

From  the  Circuit  Court  for  Jefferson  County. 
Nicholas,  for  plaintiff. 
Guthrie,  for  defendant. 

Robertson,  C.  J.  Daniel  Keas}^  owning  a  lot  on  Jefferson  street, 
in  Louisville,  on  which  he  had  erected  a  small  wooden  house,  since  that 
street  liad  been  graded  and  paved,  under  the  charter  of  incorporation 
of  1828  —  sued  the  city,  in  an  action  on  the  case,  for  elevating  the 
grade  about  three  feet  above  the  level  of  his  lot,  after  he  had  thus  im- 
proved it,  correspondently  with  the  first  grade,  in  consequence  of  which 
he  had,  as  he  avers,  to  fill  up  his  lot  and  reconstruct  his  house,  and  had 
been,  in  other  respects,  subjected  to  inconvenience  and  damage. 

The  facts,  as  alleged,  having  been  proved  on  the  trial,  on  the  general 
issue,  the  court  instructed  the  jur}'  that,  if  they  should  believe,  •'  from 
all  the  evidence,  that  the  Mayor  and  councilmen  of  the  city  of  Louis- 
ville had  the  street  filled  or  raised  for  the  purpose  of  carrying  off  the 
X  water  in  that  part  of  the  city,  and  the  injury  complained  of  arose  from 

filling  or  raising,  the}'  ought  to  find  for  the  defendant." 
v\  .o«r->^p.    Verdict  and  judgment  were  accordingly  rendered  in  bar  of  the  action. 
^3^  And   it  is  that  judgment  which  the  plaintiflT  in  error  now  seeks  to 

,a^^^        reverse. 

The  constitutional  power  to  incorporate  the  citizens  of  Louisville  into 
^^^  "  a  municipal  body  politic,  possessing,  as  every  artificial  as  well  as  natu- 
■^^^^  ral  being  ought  to  possess,  a  self-will  and  the  faculty  of  acting,  of  regu- 
'''"'^-^  luting  its  own  affairs,  and  of  governing  its  constituent  members,  as  far 
^'-^vj)  as  may  be  consistent  with  its  charter,  the  federal  and  state  consti- 
^■*-'^'^«-^  tutions  and  the  general  laws  of  the  Commonwealth,  and  as  may  be 
^-•^-K  proper  for  effectuating  the  legitimate  ends  of  its  creation,  has  been  con- 

^»>Aj>J^A  ceded  by  the  plaintiff  in  error,  in  the  fact  of  suing  the  corporation,  and 
*X^  has,  also,  been  necessarily  presupposed  by  the  Circuit  Judge,  in  giving 
^.  v>->-4l_,  his  hypothetical  instruction  to  find  for  the  City  as  defendant.  And, 
3^0^'tto  not  doubting  either  the  power  of  incorporating  the  city,  or  the  incidental 
"C^  corporate  right,  either  inherent,  or  derived  from  legislative  authoriza- 

^L^vJt  tion,  to  grade  and  pave  the  streets  of  the  cit}-,  we  are,  also,  of  the 
v.^*oi-  opinion,  that  the  corporation  had  authority  to  regrade  and  pave  Jeffer- 
Xfvj^^,^^^,^  son  street,  or  any  other  street,  whenever  the  municipality  might  have 
,j_^j^^^_^  'flecmed  such  an  improvement  useful  to  the  local  public. 
;^_^^^^^^^|jL  The  power  of  the  Commonwealth  over  the  streets,  as  well  as  over  the 
.  ^<J^rocal  police,  having  been,  not  alienated,  but  delegated,  or  rather  de- 
[*--^^  f erred,  to  the  city  itself,  it  was  not  material  to  the  legal  authorit}'  of 
''^"^"^'~  the  order  for  changing  the  grade  of  Jefferson  street,  that  such  a  change 
'i**"^-^  was,  in  fact,  necessary  for  draining  water  or  for  any  other  purpose. 
^-'v^v.v^       The  city  decided  that  it  was  proper — and  personal  inconvenience  or 


•>..  /^-^  _  ^  - 


.  o. 


I 


KEASY   V.    CITY   OF   LOUISVILLE.  147 

private  judgment,  however  repugnant  to  the  policy  of  re-grading,  could 
not  have  affected  the  legal  validity  of  the  order. 

But  the  public  right  to  regulate  the  common  highways  of  the  city,  is, 
of  course,  not  arbitrary  and  unlimited  :  far  from  it.  Private  rigJds  must 
be  regarded.  The  public,  like  a  common  person,  must  so  use  its  own 
as  not  to  injure  another's  property.  It  cannot  take  private  property 
for  public  use,  without  paying  a  just  equivalent ;  nor  can  it  disturb  any- 
personal  right  of  enjoyment.  But,  without  touching  the  plaiutift"'s  lot, 
or  in  any  wa}'  encroaching  upon  it,  or  interfering  with  any  prescriptive 
i4ght,  to  light,  or  to  private  wa}',  the  city  had  as  clear  and  perfect  au- 
thoi'it}'  to  raise  its  street  higher,  or  sink  it  lower,  than  the  level  of  his 
lot,  as  he  would  undoubtedly  have  had  to  elevate  or  sink  his  ground, 
without  touching  or  otherwise  injuring  or  interfering  with  the  public 
street. 

On  the  trial  of  the  case,  theje  was  no  evidence  tending,  in  anv  de- 
gree,  to  show,  that  the  plaintiff's  lot  had  been  intruded  on  or  touchedj^ 
or  that  the  elevation  in  the  grade  of  the  street  caused  water  to  run  or 
remain  upon  it,  or  rendered  it  less  salubrious,  or  divested  him  of  any 
vested  right.,  or  umustlij  (^\)^\x\\cX,cx\  the  enjoyment  of  any  such  right; 
and  mere  inconvenience.^  to  which,  in  his  opinion  or  in  fact,  a  public]  v 
improvement  m  his  city  may  nave  suDiected  him,  iS  nOt  Sumcient  per  se  \^ 
lo~eTittTfe  him  to  damages,     liiverj'  citizen  takes  and  Holds  private  prop-  0$''**"^^'^ 
ert}'  in  land  subject  to  the  paramount  public  rights,  and  to  the  contin-  ^"^^'^'v^-'^ 
gency  of  adventitious  enhancement  or  diminution  in  value,  resulting **:"^"'*^^^'^ 
from  the  exercise  of  the  public  power  for  the  common  good,  in  any    <5^^''^'*^'**^ 
manner  which  shall  not  deprive  him  of  j^roperty,  nor  disturb  him  in  the 
lawful  use  of  any  thing  which  should,  of  right,  be  his.    A  citizen  cannot 
be  compelled  to  paj'  for  private  advantage  arising  from  the  location  of 
a  public  way  ;  nor,  —  unless  his  property  be  taken  or,  in  some  way,  en- 
croached on,  so  as  to  divest  him  of  some  exclusive  individual  right, — 
can  he  be  entitled  to  damages  for  incidental  disadvantage.     If  the  city 
possess  power  to  shut  up  Jefferson  street,  and  should  exercise  it,  the 
reclusion  would  subject  the  plaintiff,  and  others  also,  to  much  more  in- 
convenience and  actual  loss  than  an}'  which  could  have  been  occasioned 
by  the  elevation  of  the  grade  :  but,  —  the  power  conceded,  —  a  legal 
right  to  damages  for  the  total  obliteration  of  the  street  could  not  be  ■ 
maintained.     It  would  have  been  damyiutn  absque  injuria  —  loss,  noT 
injury  —  inconvenience,  not  wrong  —  to  which  every  citizen  must  sub- 
mit, and  to  something  like  which  every  citizen  does  submit,  for  the 
public  good. 

As  to  the  legality  or  propriety  of  some  of  the  modes  of  making  public 
improvements  in  the  city  of  Louisville,  this  Court  has  no  right  to  give 
any  opinion  in  this  case.  The  means  employed  for  effecting  an  allow- 
able end  may  be  inappropriate,  or  even  unauthorized,  but  the  end  itself 
—  when  accomplished  —  is  not  therefore  the  less  unexceptionable. 
Jefferson  street  has  been  re-graded  —  by  what  instrumentality  is  not  here 
material ;   the  end  was  lawful ;  the  city  had  a  right  to  effect  it  in  some 


148  KEASY  V.   CITY   OF   LOUISVILLE. 

mode  ;  and  having  done  so,  without  injur}'  to  any  of  the  plaintiffs  private 
rights,  (as  we  are  bound  to  presume  from  this  record,)  he  has  no  legal 
title  to  demand  an}'  damages  for  an  accidental  consequence,  arising 
from  the  rightful  exercise  of  a  public  power,  without  any  tortious,  or 
negligent,  or  unjust  act  or  omission. 

We  have  not  said,  nor  can  we  say,  that  a  citizen  may  not  be  entitled 
to  damages  for  a  deprivation  of  the  use  of  his  property  by  a  public  way 
which  may  not  take,  or  even  touch,  any  of  his  land.  But  the  case  in 
which  such  a  right  to  damages  might  be  recognised,  must  be  an 
extreme  and  peculiar  one.  And  this  is  not  such  an  one,  but  is  an  or- 
dinary case  occurring,  in  a  greater  or  less  degree,  frequently  —  almost 
constantly  ;  and  the  public  could  not  well  bear  the  heavy  and  vexatious 
burden  of  such  demands  as  would  forever  arise  from  such  cases,  were 
they  admitted  to  be  cases  of  private  injury,  for  which  an  action  could 
be  maintained.  Nor  could  individual  citizens  be  justly  subjected  to  the 
reciprocal  claims  of  the  public  against  them,  for  the  like  inconvenience 
arising  from  their  lawful  use  and  enjoyment  of  nothing  but  their  own 
private  property.  And  hence,  as  a  general  rule,  the  law  gi_yes  no  dam- 
ages  to  either  party,  when  there  has  been  no  trespass^  nor  any  nuisance 
whicli  might  have  been  avoided  without  a  surrender  of  a  just  and  neges- 
riary  riglit. 

If,  as  we  have  supposed  and  decided,  the  city  had  authority  to  change 
the  first  grade,  there  could  have  been  no  implied  agreement,  when  that 
was  fixed,  that  it  would  never  be  changed,  any  more  than  such  an 
agreement,  between  the  United  States  and  the  owners  of  land  on  the 
Cumberland  Road,  never  to  change  the  location  or  grade  of  that  national 
way,  could  be  deemed  as  having  been  implied. 

Wherefore,  it  seems  to  us,  that  the  plaintiff  altogether  failed  to  prove 
any  fact  from  which  the  jury  would  have  had  a  right  to  infer,  that  he 
had  a  legal  right  to  damages.  And  therefore,  it  is  our  opinion  that, 
however  unnecessary  or  inappropriate  the  hypothetical  assumptions  of 
the  Court  may  be  deemed  to  have  been,  the  instruction  was  not  erro- 
neous to  the  plaintiff's  prejudice  —  and  the  judgment  consequently  must 
remain  unreversed.^ 

1  Tlie  absence  of  munici])al  liability  at  common  law,  in  cases  like  Keasijv.  Louisville, 
has  been  aflSrmed  by  the  courts  in  most  of  the  states.  (For  the  exceptional  decisions 
contra  in  Oliio,  see  McCombs  v,  Akron  Council,  1 .5  Ohio,  474 ;  s.  c.  1 8  Ohio,  229  ;  Crawford 
V.  Village  of  Delaware,  7  Ohio  State,  459  ;  and  other  cases  reviewed  in  Lewis  on  Eminent 
Domain,  s.  98.)  2  Dillon,  Mun.  Corp.,  4th  ed.,  s.  990.  Statutes,  however,  have  been 
enacted  in  some  states  giving  compensation  for  damages  to  abutting  property  by  change 
of  grade.  These  statutes  and  the  decisions  thereunder  are  reviewed  in  Lewis  on  Emi- 
nent l^omain,  ss.  207-218  ;  and  late  decisions  are  collected  in  6  Lewis,  Am.  II.  R.  & 
Corp.  Reports,  p.  257,  note.  Some  modern  constitutions  provide  that  compensation 
Bhall  be  made,  not  only  for  property  taken  for  public  use,  but  also  for  property  damaged 
or  injured.  Under  such  provisions  it  has  been  held  that  the  abutting  owner  may  recover 
for  damage  to  his  property  by  a  change  in  the  grade  of  the  street.  See  2  Lewis,  Am. 
R.  R.  &  Corp.  Rep.  p.  435,  note ;  6  Ibid.,  p.  257,  note ;  and  compare  2  Dillon,  Mun. 
Corp.,  4th  ed.,  ss.  995a,  995  b,  and  995c.  —Ed. 


BUTTRICK   V.   CITY   OF  LOWELL. 


149 


BUTTRICK   V.    CITY  OF  LOWELL. 

1861.     1  Allen  (Massachusetts),  172.1 

Tort  for  an  assault  and  battery. 

A  city  ordinance  provides,  that  "  three  or  more  persons  shall  not 
stand  together  or  near  each  other  in  any  street  in  the  city  in  such 
manner  as  to  obstruct  a  free  passage  therein  for  passengers."  While 
the  plaintiff  was  standing  peaceably,  and  talking  with  only  one  other 
person,  upon  the  sidewalk,  and  interrupting  no  one  in  the  proper  use 
of  the  same,  two  police  officers  of  the  city  of  Lowell  ordered  him  off, 
and,  upon  his  refusing  to  go,  assaulted,  arrested,  and  imprisoned 
him ;  claiming  that  by  so  doing  they  were  only  performing  their 
official  duty.  The  plaintiff  brought  an  action  of  tort  against  the 
policemen  for  false  arrest  and  assault  and  battery.  The  policemen 
attempted  to  justify  their  proceeding  under  the  above  city  ordinance. 
The  plaintiff  recovered  judgment  against  the  policemen  for  $500 ;  which 
judgment  remains  unsatisfied.  The  city  of  Lowell  authorized  its  solici-  V^ji_Si_,^i 
tor  to  appear  in  the  defence  of  said  suit,  and  paid  him  for  trying 
the  same.     The  plaintiff  now  brings  the  present  action  against  the 


city,  to  recover  damages  for  said  assault  by  the  police  officers.  ^^  ^   a. 

tFpou  an  agreed  statement,  setting  forth  substantially  the  foregoing  ^*'"*~^'^"*" 
facts,  a  nonsuit  was  ordered.     Plaintiff  appealed. 

B.  F.  Butler,  for  the  plaintiff.     The  rule  regulating  the  liability 


V^--e.-^;w. 


^:*^/\/^ 


<>>  A.A. 


of  a  municipal  corporation  seeins  to  be  this:  (L)  no  liability  exists 
for  the  negligence  of  public  officers  over  whom  it  has  no  control  save 
in  their  appointment;  (2.)    liability  does  exist,  under  the  doctrine  of,,  - 

respondeat  superior,  in  all  cases  in  which  the  servant  is  in  the  direct  ^^  '^*  \i  j 
execution  of  a  trust  or  order  of  the  city  or  town,  within  the  scope  of  V^"*^-^— o^^ 
its  authority,  or  upon  any  matter  upon  which  it  may  make  by-laws.  cJLfv.^j  vjj-JiA 
.Gushing  v.  Stoughton,  6  Cush.  389.  Thayer  v.  Boston,  19  Pick.  511.<Xrsj«vS-OkIsL. 
Perry  v.  Worcester,  6  Gray,  544.  ''^^-©vXv^^.  .  v/ 

T.  H.  Sweetser,  for  the  defendant 

BiGELOw,  C.  J.  This  case  must  be  governed  by  the  decisions  in 
Hafford  v.  City  of  Neiv  Bedford,  16  Gray,  297,  and  Walcott  v. 
Swampscott,  ante,  101.  Police  officers  can  in  no  sense  be  regarded 
as  agents  or  servant.^  of  thp  p.it.y.  Their  duties  are  of  a  public  nature. 
Their  appointment  is  devolved  on  cities  and  towns  by  the  legislature 
as  a  convenient  mode  of  exercising  a  function  of  government;  but 
this  does  not  render  them  liable  for  their  unlawful  or  negligent  acts. 
The  detection  and  arrest  of  offenders,  the  preservation  of  the  public 
peace,  the  enforcement  of  the  laws,  and  other  similar  powers  and 
duties  Avith  which  police  officers  and  constables  are  intrusted,  are 
derived  from  the  law,  and  not  from  the  city  or  town  under  which  they 
hold  their  appointment.  For  the  mode  in  which  they  exercise  their 
powers  and  duties  the  city  or  town  cannot  be  held  liable. 
1  Statement  abridged.  —  Ed. 


3c^ 


150 


GILBOY   V.   CITY   OF   DETROIT. 


Nor  does  it  make  any  difference  that  the  acts  complained  of  were 
done  in  an  attempt  to  entorce  an  ordinance  or  by-laW  Of  the  city.* 
The  authority  to  enact  by-laws  is  delegated  to  the  city  by  the  sover- 
eign  power,  and  the  exercise  of  the  authority  gives  to  such  enact- 
ments the  same  force  and  effect  as  if  they  had  been  passed  directly 
by  the  legislature.  They  are  public  laws  of  a  local  and  limited  oper- 
ation,  designed  to  secure  good  order  and  to  provide  for  the  welfare 
and  comfort  of  the  inhabitants.  In  their  enforcement,  therefore, 
;golice  officers  act  in  their  public  capacity,  and  not  as  the  agents  or 
servants  of  the  city. 

The  facts  relied  on  in  this  case  to  show  a  ratification  or  adoption 
by  the  city  of  the  acts  of  the  police  officers  cannot  have  that  effect. 
They  are  entirely  consistent  with  a  belief  on  the  part  of  the  mayor 
and  other  agents  of  the  city  that  the  police  officers  had  committed  no 
unlawful  invasion  of  the  plaintiff's  rights.  Perley  v.  Georgetown^ 
7  Gray,  464. 

It  may  be  added  that,  if  the  plaintiff  could  maintain  his  position 
that  police  officers  are  so  far  agents  or  servants  of  the  city  that  the 
maxim  respondeat  superior  would  be  applicable  to  their  acts,  it  is 
clear  that  the  facts  agreed  would  not  render  the  city  liable  in  this 
action;  because  it  plainly  appears  that,  in  committing  the  acts  com- 
plained of,  the  officers  exceeded  the  authority  vested  in  them  by  the 
by-law  of  the  city. 

Judgment  for  the  defendants. 


e^ 


GILBOY   ET  AL.    V.    CITY   OF   DETROIT. 

Supreme  Court  of  Michigan.     December  7,  1897.^ 

fANT,  J.     This  is  an  action  of  tort.     The  declaration  alleges  that 
plaintiff  kept  a  boarding  house;  that  he  received  a  boarder  in  the 
usual  course  of   business;   that  said   boarder  had  been   exposed  to 
small-pox  at  the  Merchant's  Hotel  in  the  city  of  Detroit;  and  that 
5l  '^'vva>,v»^.    through  the  negligence  of  the  Board  of  Health  said  person  was  per- 
».  ^Co  mitted  to  go  at  large  instead  of  being  confined;  that  it  was  the  duty 

'  \i-^yyy\ji_oi  the  Board  of  Health,  under  the  charter  and  ordinances  of  the  city, 
w^^'iS^j^^.^.j^jJ-o  examine  the  person  at  the  Merchant's  Hotel,  determine  whether 
<sIo2^L\r/  she  had  small-pox,  and,  if  she  had,  to  remove  her  to  a  pest  house  or 
3lX^  W*  hospital;  that  the  person  received  into  plaintiff's  boarding  house  was 
.,  , ,  taken  down  with  small-pox  while  there,  and  he  in  consequence  suffered 

C  »/vJl»>v-    ^^^^  ^"^^  damage. 

o*^/^^.    A  demurrer  was  interposed  and  sustained  by  the  Court. 
s-^^Jj**^^"^      The  record  presents  the  sole  question:  Is  a  municipality  liable  for 
1^^,^^*,    *         the  negligence  of  officers  of  the  Board  of  Health  in  the  performance 

"'**"'^^   ^-^^^-Cfclk,-^       ^  From  copy  of  opinion  furnished  by  Clerk  of  Supreme  Court.  —  Ed. 
'**-^-'^-  ^^-O-^  v^>-to^     CK-3L^L)^-<->ox^c-*£i-  ^    ^Qn^l^^     C^ 


v>o 


WALCOTT   V.    INHABITANTS   OF   SWAMPSCOTT.  151 

of  their  duty  ?     Counsel  for  the  plaintiff  cite  no  authorities  to  sup- 
port their  contention,  and  probably  for  the  very  good  reason  that 
none  can  be  found.     The  authorities  universally  hold  to  the  contrary.       . 
The  universal   rule  is  that  suchboarcls   and  officers  are   not  acting       j 
for  private  but  for  public  purposes;  tht-y  represent  the  entire  state       / 
through   the    municipality,    apolitical    division   of   the    state;    and      I 
municipalities,  in  tlie  absence  of  "express  statutes  fixing  liability,  are     / 
not  liable  for  the  negiigeiiee  of  such  officers  and  boards.     Maxrtiilian 
V.  Mayor ^  (52  JS.   1.  IGO;   Tlirlnaond  v.  Long^s  Admrs.,  17  Grat.  375; 
Brotvn  v.     Vinalhaven,  65   Me.  402 ;  Barbour  v.    Ellsworth,    67  Me. 
294 ;  3fead  v.  Neiv  Haven,  40  Conn.  72 ;   Ogg  v.  Lansing,  35  la.  495 ; 
^Jbelhourne  v.   Yuha,  21  Cal.  113;  Detroit  v.  Blackeby,  21  Mich.  84; 
mil  V.  Bosto7i,  122  Mass.  344;  2  Dill.  Corp.  sec.  965. 

Brown  v.   Vinalhaven  is  the  counterpart  of  this  in  its  facts. 

The  rule  is  so  clearly  stated  by  Justice  Folger  in  Maxmilian  v.      -fj^. 
Mayor  that  we  quote  it:  "  There  are  ^t^o  kinds  of  duties  which  are    "^ 
Imposed  upon  a  municipal  corporation l^^e  is^  of   that   kind  which    i    ■     a/1/I 
arises  from  the  grant  of  a  special  power,  in  the  exercise  of  which  the        ^'r\-\j^ 
municipality  is  as  a  legal  individual  ;tfEe  other  is  of  that  kiiid  which     _    -5lcO\,>^ 
arises,  or  is  implied,  from  the  use  olwjfblitical  rights  under  the  gen-  .^.i^    \ 
eral  law,  in  the  exercise  of  which  it  is  as  a  sovereign.     The  former-^^.^^^^^^^^^ 
power  IS  private,  and  is  used  for  private  purposes ;  the  latter  is  pub-    —     '^^^SZz 
lie  and  is  used  for  public  purposes.     The  former  is  not  held  by  the    tit-- 
municipality  as  one  of  the  political  divisions  of  the  State;  the  latter 
is.     In  the  exercise  of  the  former  power,  and  under  the  duty  to  the 
public  which  the  acceptance  and  use  of  the  power  involves,  a  munici- 
pality is  like  a  private  corporation,  and  is  liable  for  a  failure  to  use 
its  power  well,  or  for  any   injury  caused  by  using  it  badly.     But 
where  the  power  is  intrusted  to  it  as  one  of  the  political  divisions  of 
the   State,    and   is    conferred   not  for  the  immediate  benefit   of   the 
municipality,  but  as  a  means  to  the  exercise  of  the  sovereign  power 
for  the  benefit  of  all  citizens,  the  corporation  is  not  liable  for  non- 
user,  nor  for  mis-user  by  the  public  agents." 

rv  Judgment  affirmed. 

WALCOTT  V.   INHABITANTS   OF   SWAMPSCOTT. 

1861.     1  Allen  (Massachusetts),  101.  ^0;^^::^  Yw**.'vx.c 

Tort  for  an  injury  received  upon  a  highway  from  a  collision  with  a  V*^^= • 

cart  driven  by  one  O'Grady,  a  laborer  employed  b}^  a  highway  surfe^'or  ,^_^^^^  ^~^^ 
of  Swampscott  to  aid  in  repairing  a  highway.  At  the  trial  in  the  ^^]~c_^^^^ 
superior  court,  upon  the  facts  proved,  the  defendants  requested  the  va».^)eI^^  cjju 
court  to  rule  that  the}'  were  not  liable  for  the  acts  of  O'Grady  ;  but  <^^'->Xo-*^>,^  S 
Wilkinson,  J.  instructed  the  jury  that  if  O'Grady  was  driving  the  ^-o^^o-^a-vji_^ 
horse  and  cart  with  which  the  plaintiff  came  in  collision,  with  a  load  of  W^^^T^X-^^-*^ 


152  WALCOTT   V.    INHABITANTS    OF   SWAMPSCOTT. 

gravel  for  the  repair  of  the  highway,  and  was  eraployed  so  to  do  by  the 
surveyor  of  the  town,  and  the  collision  was  caused  solely  by  O'Grady's 
want  of  care  in  driving  the  horse  and  cart,  the  defendants  were  liable. 
A  verdict  was  found  for  the  plaintitf,  and  the  defendants  alleged 
exceptions. 

J.  A.  Gillis,  for  the  defendants. 

J.  W.  Perry,  {A.  B.  Almon  with  him,)  for  the  plaintiff. 

BiGELOw,  C.  J.  We  cannot  distinguish  this  case  from  Hofford  v. 
City  of  New  Bedford,  16  Gray,  297.  It  was  there  held,  that  where 
a  municipal  corporation  elects  or  appoints  an  officer,  in  obedience  to 
an  act  of  the  legislature,  to  perform  a  public  service,  in  which  the  city' 
or  town  has  no  particular  interest,  and  from  which  it  derives  no 
special  benefit  or  advantage  in  its  corporate  capacity,  but  which  it  is 
bound  to  see  performed  in  pursuance  of  a  duty  imposed  by  law  for  the 
general  welfare  of  its  inhahitnnf.g  nj-  of  the  community,  such  officer 
cannot  be  regarded  as  the  servant  or  agent  of  the  town,  for  whose 
negligence  or  want  of  skill  in  the  performance  of  his  duties  a  town  ob 
city  can  be  held  liable.  To  the  acts  and  conduct  of  an  officer  so 
appointed  or  elected  the  maxim  respondeat  superior  is  not  applicable. 

This  is  especiall}'  true  in  the  case  of  surveyors  of  highways.  They 
are  elected  by  towns  and  cities,  not  because  the}'  are  to  render  services 
for  their  peculiar  benefit  or  advantage,  but  because  this  mode  of  ap- 
pointment has  been  deemed  expedient  by  the  legislature  in  the  distribu- 
tion of  public  duties  and  burdens  for  the  purposes  of  government,  and 
for  the  good  order  and  welfare  of  the  community.  They  are,  strictly 
speaking,  public  officers,  clothed  with  certain  powers  and  duties  which 
are  prescribed  and  regulated  by  statute.  Towns  cannot  direct  or  con- 
trol  them  in  the  performance  of  these  duties  ;  they  cannot  remove  them 
Trom  office  during  the  term  for  which  they  are  chosen  ;  they  are  not 
amenable  to  towns  for  the  manner  in  which  they  discharge  the  trust 
reposed  in  them  by  law  ;  nor  can  towns  exercise  any  right  of  selecting 
the  servants  or  agents  by  whom  they  perform  the  work  of  repairing  the 
highways.  In  the  discharge  of  these  general  duties  they  are  wholly 
independent  of  towns,  and  can  in  no  sense  be  considered  their  servants 
or  agents.  It  is  only  in  certain  specified  cases,  and  under  carefully 
guarded  limitations,  that  they  can  bind  towns  by  their  acts.  Rev.  Sts. 
c.  25,  §§  13,  15.  Gen.  Sts.  c.  44,  §§  11,  13,  14.  Sikes  v.  Hatfield,  13 
Gray,  347.  It  was  decided  by  this  court,  in  White  v.  PhiUipston,  10 
Met.  108,  that  the  common  rule  of  law,  which  makes  the  agent  or  ser- 
vant liable  over  to  his  employer  or  master  for  damages  sustained  by 
him  in  consequence  of  the  neglect  of  such  agent  or  servant,  does  not 
api)l\*to  the  acts  of  a  surveyor  of  highways.  The  court  there  say  he  is 
not  treated  by  the  statute  as  a  mere  agent  or  servant  whom  the  town 
has  employed,  and  to  whom  he  is  responsible  for  neglect  of  duty.  No 
one  would  pretend  that  a  town  would  be  liable  for  damages  occasioned 
by  the  negligence  or  want  of  care  of  one  of  its  inhabitants  while  en- 
gaged in  working  out  the  amount  of  his  highway  tax  by  making  repairs 


WALDRON   V.   CITY   OF  HAVERHILL. 


153 


on  the  roads.  And  yet  we  cannot  see  why  such  liability  would  not 
exist  if  the  surveyor  of  highways,  or  the  persons  employed  by  him,  can 
render  the  town  chargeable  for  acts  of  carelessness  while  employed  in 
performing  similar  labor.  The  truth  is,  that  in  neither  case  does  the 
relation  of  principal  and  agent  or  master  and  servant  exist. 

In  the  case  at  bar,  the  injury  sustained  by  the  plaintiff  was  not 
occasioned  bj'  any  negligence  or  want  of  care  on  the  part  of  the  sur- 
Veyor  himself,  but  by  the  carelessness  of  a  person  employed  by  him  to 
make  repairs  on  the  road.  To  sustain  this  action,  therefore,  it  would 
be  necessary  to  hold  that  the  defendants  were  liable  not  only  for  the 
acts  of  a  public  officer,  but  also  for  those  of  a  person  in  his  employment 
whom  they  did  not  select,  and  in  w^hose  employment  to  act  in  their 
behalf  they  could  have  no  voice.  This  would  be  a  clear  violation  of 
the  principle,  that  the  right  of  selection  lies  at  the  foundation  of  tlie 
liability  of  a  master  for  the  acts  of  his  serva"nE  The  law  does  not  hold 
parties  responsible  for  the  negligence  or  want  of  skill  of  those  over 
whose  selection  and  employment  they  could  exercise  no  direction  or 
control.  Exceptions  sustained. 


rn 


WALDRON    r.    CITY   OF   HAVERHILL. 

1887.     143  Massachusetts,  582. 

Tort,  for  injuries  occasioned  to  the  plaintiff's  real  estate  by  reason 
of  the  operation  of  a  stone-crusher  on  land  of  the  defendant,  between 
August  1  and  October  21,  1884. 

At  the  trial  in  the  Superior  Court,  before  3Iasov,  J.,  it  was  admitted  . 
that  the  plaintiff,  during  the  time  alleged  in  his  declaration,  was  in  ''r^^^-^7" 
the  occupation  and  possession  of  the  premises  described  therein;  and  '^^?^^-  ^ 
that,  during  said  time,  a  stone-crusher,  engine,  and  boiler,  all  of  ^^aj^Xj^^^a. 
which  were  the  property  of  the  defendant,  were  operated  under  thc^^Ny^-^-jo--^ 
direction  of  one  Mansur,  who  was  the  superintendent  of  streets  of^^'^*-*^:  vil>^ 
the  defendant  city,  for  the  purpose  of  crushing  rocks  and  stones  for^""*^'^^'^-^  . 
the  city,  used,  when  so  crushed,  in  keeping  the  public  streets  in  the  ^ 
city  in  suitable  order  and  condition  for  travel.  The  stone-crusher' 
was  situated  on  land  of  the  city  formerly  used  as  a  gravel  pit  for^^^"^-**^^^^-^ 
supplying  materials  to  be  used  in  repairing  said  streets  and  high-T*"*"'""^:^  i 
ways,  and  was,  during  the  time  alleged  in  the  declaration,  used^^  crv.v*-a 
exclusively  in  the  preparation  of  inaterials  to  be  used  in  keeping  said'^"'*^"'^  V"" 
streets  and  highways  in  repair.  Said  land  was  a  short  distance  from  ^"'^-'-•'|^a'^->-' 
the  plaintiff's  premises,  and,  by  the  operation  of  the  stone-crusher.  ^Vv^,.^  y^ 
Btone  dust  arose  and  was  deposited  on  the  plaintiff's  premises,  which  oJk  ,Aa^ 
were  thereby  damaged  to  the  amount  of  850.  The  men  who  operated  --1^2*^ 
the  stone-crusher  under  the  direction  of  Mansur  were  paid  therefoi  ^^^"^""'^  "^ 


y\-»*- 


by  the  defendant. 


Xs^ia..^^ 


""^-^ 


^w^ 


154         .  WALDKON   V.   CITY   OF   HAVERHILL. 

It  also  appeared  in  evidence,  that  the  plaintiff  occupied  his  said 
premises  before  the  stone-crusher  was  placed  upon  the  defendant's 
land;  that  the  ownership,  use,  and  operation  of  the  stone-crusher, 
engine,  and  boiler,  and  the  ownership  and  occupation  of  said  land  ot 
the  defendant,  were  reasonably  necessary  for  the  keeping  of  said 
highways  in  reasonable  order  and  repair  for  travel ;  but  that  it  would 
have  been  practicable,  by  the  erection  of  a  board  fence,  to  have  pre- 
vented said  damage  to  the  plaintiff's  premises  by  said  dust.  It 
further  appeared  that  the  mayor  of  the  city,  who  was  chairman  of 
the  committee  on  public  streets,  on  two  occasions  during  the  time 
alleged,  was  on  the  defendant's  land. 

The  material  provisions  of  the  city  charter  and  ordinances,  which 
were  introduced  in  evidence,  appear  in  the  opinion. 

The  judge  ruled,  as  matter  of  law,  that  the  plaintiff  was  not  entitled 
to  recover;  and  directed  the  jury  to  return  a  verdict  for  the  defendant. 
The  plaintiff  alleged  exceptions. 

B.  B.  Jones,  for  the  plaintiff. 
J.  J.  Winn,  for  the  defendant. 

C.  Allen,  J.  If  a  city  or  town,  instead  of  leaving  the  duty  of 
keeping  the  highways  in  repair  to  be  performed  by  the  officers,  and 
in  the  methods  provided  by  the  general  laws,  assumes  to  perform  it 
by  means  of  agents  whom  it  may  direct  and  control,  it  may  be  helcl 
responsible  for  the  acts  of  those  agents.  The  chief  grounds  of  a" 
town's  exemption  from  responsibility  for  the  acts  of  surveyors  of 
highways,  as  stated  in  Walcott  v.  Swampscott,  1  Allen,  101,  and  in 
later  cases,  are,  that  their  powers  and  duties  are  prescribed  and  reg- 
ulated by  statute,  and  that,  in  the  performance  of  these  duties,  they 
are  independent  of  the  town,  and  cannot  be  directed,  or  controlled, 
or  removed  from  office  by  the  town,  and  are  not  amenable  to  it  for 
the  manner  in  which  they  discharge  the  trust  reposed  in  them  by  law; 
nor  can  the  town  exercise  any  right  of  selecting  the  servants  or  agents 
by  whom  surveyors  shall  perform  their  work.  These  reasons  are  not 
applicable  to  a  case  where  a  town  performs  the  work  by  means  of 
agents  of  its  own.  Hawks  v.  Charlemmit,  107  Mass.  414.  Deane 
V.  Randolph,  132  Mass.  475.  Sullivan  v.  Holyoke,  135  Mass.  273. 
Tindley  v.  Saleiii,  137  Mass.  171. 

The  present  case  falls  within  the  latter  class.  By  the  city  charter, 
the  administration  of  all  the  fiscal,  prudential,  and  municipal  affairs 
of  the  city  of  Haverhill  is  vested  in  the  city  council.  By  the  city 
ordinances,  a  superintendent  of  highways,  removable  at  the  pleasure  of 
the  city  council,  is  to  be  chosen.  He  is  to  act  under  the  direction 
of  the  committee  on  streets,  ways,  and  sewers,  which  is  a  committee 
of  the  city  council.  Special  provisions  sliow  more  in  detail  his  sub- 
ordination to  the  city  council,  and  to  its  committee.  The  work 
which  caused  the  injury  to  tlie  plaintiff's  property  was  done  on  land 
of  the  city,  which  land  for  a  period  of  nearly  three  months  was  used 
Exclusivefy  for  the  preparation  of  materials  for  repairing  the  streets 


WHEELER   V.   CITY   OF  CINCINNATI.  155 

and  highways  of  the  city.     There  is  nothing  to  show  that  this  use  of 

the  city's  land  was  unauthorized.     The  contrary  is  to  be  assumed. 

Upon  all  the  facts  stated,  the  work  in  question  appears  to  have  been     ■       j\ 

done  by  agents  of  the  city,  for  whose  acts  and  neglects  in  the  per-     ij/  f  \ 

formance  thereof  the  city  is  responsibleT 

The  case  of  Barney  v.  Lowell,  98  Mass.  570,  was  distinguished, 
on  grounds  equally  applicable  here,  in  Hawks  v.  Charlemont,  ubi 
supra,  by  Chief  Justice  Chapman,  who  took  part  in  the  decision  of 
both  cases.  Exceptions  sustained. 


^\^       WHEELER  u.  CITY  OF  CINCINNATI. 

1869.     19  Ohio  State,  19.i 

The  plaintiff  brought  his  action  in  the  court  of  common  pleas  of 
Hamilton  county,  seeking  to  recover  from  the  defendant  the  damages 
arising  from  the  casual  destruction  of  his  house  (situated  within  the 
limits  of  said  city)  b}'  fire ;  on  the  ground  that  the  defendant  had 
failed  and  neglected  to  provide  the  necessary  cisterns  and  suitable 
engines  for  extinguishing  fires,  in  that  quarter  of  city  in  which  his  said 
house  was  situated,  and  that  certain  officers  and  agents  of  the  flre^^n  u 
department  of   said  city  had  neglected  and  failed  to  perform  their    " 


duties  in  regard  to  the  extinguishing  of  said  fire,  b}'  reason  whereof  ^-^  '^^-x.^er^ 
said  fire  was  not  extinguished,  as  it  otherwise  might,  and  could  have  V>-oJiA5tjL 
been.     A  demurrer  to  his  petition,  alleging  these  facts,  was  sustained'-v^^Ov^^j^y^j;^ 
by  the  court,   and  judgment  rendered  for  the  defendant,  which  was  cl-os3^ 
subsequently   affirmed    by   the    district   court,    upon   proceedings    in  5.  ft  .    -    r 
error.  ^Z^^ 

The  plaintiff  now  seeks  a  review  and  reversal  of  those  judgments,  on   nj^^  " 
the  ground  of  error  in  sustaining  the  demurrer  to  his  petition.  •\J^^^X^Jvf^, 

J.  T.  Crapsey  and  Collins  &  Herron,  for  the  motion.  ^rv-%-\>.«it 

J.  Bryant  Walker  ( Walker  &  Conner),  contra.  V-v-^o^c-oJ^ 

By  the  Court.  The  laws  of  this  State  have  conferred  upon  its  ^jxXjj_  <Kjfe 
municipal  corporations  power  to  estabUsh  and  organize  fire  companies,  j-u.-5-V--  ^^ 
procure  engines  and  other  instruments  necessar}'  to  extinguish  fire,  and  k  "^^^^-^3 
preserve  the  buildings  and  property  within  their  limits  from  eonflagra-  '^^'"^'^'^*-^ 
tion  ;  and  to  prescribe  such  by-laws  and  regulatioQS  for  the  government  *^  JLxIK^ 
of  said  companies  as  may  be  deemed  expedient.  But  the  powers  thus  9a.,^^.vnIxA 
conferred  are  in  their  nature  legislative  and  governmental ;  the  extent  v:  .    . 

and  manner  of  their  exercise^  within  the  sphere  prescribed  by  statute,  \»^~^  *  V^ 
are  necessarily  to  be  determined  by  the  judgment  and  discretion  of  the'^^^^'^V'^'^^^-ttii 
proper  municipal  authorities,  and  for  any  defect  in  the  execution  of  "-^  Ok  "D>j 
such  powers,  the  corporation  cannot  be  held  liable  to  individuals.  ^V5>-<>«>vvv^ 
Nor  is  it  liable  for  a  neglect  of  duty  on  the  part  of  fire  companies,  ot  p_^'       ^rr^ 

1  Arguments  omitted.  —  Ed.  "^    cXjO..    — ■>   -Xjv_©.A>..St^^    jLj** 


156  HAYES   V.   CITY    OF   OSHKOSH. 

their  officers,  charged  with  the  duty  of  extinguishing  fire^.  Tha  pnwfii 
of^the  city  over  the  subject  is  that  of  a  delegated  quasi  sovereignty', 
iWiicu  exchides  responsibility  to  individuals  for  the  neglect  or  non- 
feasance of  an  officer  or  agent  charged  with  the  performance  of  du- 
ties. The  case  drffers  from  that  where  the  corporation  is  charged  by 
law  with  the  performance  of  a  duty  purely  ministerial  in  its  character. 
We  know  of  no  case  in  which  an  action  like  the  present  has  been  held 
to  be  maintainable.  Brinkmeyer  v.  Evansville,  29  Ind.  R.  187  ;  West- 
ern College  of  Medicine  v.  City  of  Cleveland,  12  Ohio  St.  R.  375. 
Leave  to  file  petition  in  error  refused. 


HAYES  V.  CITY  OF  OSHKOSH. 

1873.     33  Wisconsin,  314.1 

Action  against  the  city  to  recover  the  value  of  property  destroyed 
by  a  fire  which  was  caused  by  negligence  in  working  a  steam  fire  en- 
gine belonging  to  the  city.  Said  engine  was  being  operated  at  the 
time  to  extinguish  a  fire  in  the  barn  of  one  of  plaintiff's  neighbors  ; 
and  was  under  the  control  of  engineers  employed  and  paid  by  the  city. 
I  The  city  charter  provided,  in  substance,  that  the  common  council  should 
procure  fire  engines,  and  have  charge  and  control  of  the  same;  also 
'    that  the  council  should  appoint  competent  officers  and  firemen,  define 

>.        t\     -   their  duties,  fix  their  salaries,  and  remove  them  at  pleasure. 

^  /V*-^»^--  Verdict  directed  for  defendant.     Plaintiff  appealed. 

'^'^--•-^  C.  Coolbaugh  &  Son,  for  appellant. 

'"''"^^  .  W.  H.  Kennedy,  {Gahe  Bouck  with  him,)  for  the  cit}'. 

2^^*"*^^^     Dixon,  C.  J.     The  question  presented  in  this  case  is  settled  b^-  au» 

^^^^^'^'^"^^  thority  as  fully  and  conclusively  as  any  of  a  judicial  nature  can  ever  be 

'"'^  "^  said  to  have  been.     The  precise  question  may  not  have  been  hereto- 

fore decided  by  this  court,  but  a  very  similar  one  has,  and  the  govern- 
ing principle  recognized  and  affirmed.  Kelley  v.  Milwaukee,  18  Wis. 
83.  Neither  the  charter  of  the  city  of  Oshkosh,  nor  the  general  stat- 
utes of  this  state,  contain  any  peculiar  provision  imposing  liability  in 
cases  of  this  kind  ;  and  the  decisions  elsewhere  are  numerous  and  uni- 
form, that  no  such  liability  exists  on  the  part  of  the  cit}'.  The  case 
made  by  the  plaintiff  is  in  no  material  respect  distinguishable  from 
those  adjudicated  in  ILifford  v.  New  Bedford,.  16  Gray,  297,  and 
Fisher  v.  Boston,  104  Mass.  87,  as  well  as  in  several  other  reported 
decisions  cited  in  the  briefs  of  counsel,  and  in  all  of  which  it  was  held 
that  the  actions  could  not  be  maintained. 

The  grounds  of  exemption  from  liability,  as  stated  in  the  authorities 
\  1'-      I  last  named,  are,  that  the  corporation  is  engaged  in  the  performance  of 

>s^'  a  public  service,  in  which  it  has  no  particular  interest,  and  from  which 

^  Statemeut  abridged.    Arguments  omitted.  —  Ed. 


WILD    V.    PATERSON.  157 

Jt  derives  no  sppmal  benefit  or  advantapre  in  its  corporate  capacity,  but 
which  it  is  bound  to  see  performed  in  i)ursuance  of  a  duty  imposed  by 
law  for  the  general  welfare  of  tlie  inhabitants^  or  of  the  community  ; 
that  the  members  of  the  fire  department,  although  ai>pointed  by  the_ 
city  corporation,  are  not7when  acting  In  the  discharge  of  their  duties, 
servants  or  agents  in  the  employment  of  the  city,  for  whose  conduct 

'the  city  can  be  held  liable  ;  but  they  acTl-atircx-aa--.ULiblk;  "olll cqH^£) [ 
officers  of  the  city  charged  with  £!pliblic  seiwice,  for  whose  ingli^eijeeT 
or  misconduct  in  tlie  discharge  of  ollicial  duty  no  action  will  lie  againsF  | 
the  city,^^.unless  expressly  given;  and  hence  the  maxim  re,sjjo/id'iaAJ 
superior  has  no  ;i|i[ilication.  ' 

The  reasons  thus  given  are  satisfactory  to  our  minds,  and  lead  to 
a  conclusion  which  on  the  whole  seems  to  us  to  be  just  and  proper. 
Individual  hardship  or  loss  must  sometimes  be  endured  in  order  that 
still  greater  hardship  or  loss  to  tlie  public  at  large  or  the  community 
may  be  averted.  It  would  seem  to  be  a  hard  rule  which  would  hold 
the  cit}'  responsible  in  damages  in  such  cases,  when  the  work  in  which 
it,  or  rather  its  public  officers  are  engaged,  is  one  of  mere  good  will,  a 
charity,  so  to  speak,  designed  for  the  relief  of  suffering  members  of  the 
community,  or  it  may  be  of  the  entire  people  of  the  district.  If  the 
legislature  sees  fit  to  enact  such  liability,  so  let  it  be  ;  but,  in  the  ab- 
sence of  such  enactment,  we  must  hold  the  liability  does  not  exist. 


.K^'^''"^-*-'^^ 


By  the  Court.  —  Judgment  affirmed. 


J^  &^. 


^ 


WILD   V.   PATERSON. 

•1885.     47  Neiv  Jersey  Law,  406.» 

On  demurrer  to  declaration. 

The  action  is  in  case.  The  declaration  avers  that  the  city  of  Pater-  W^SL^  c 
son,  under  the  authority  and  direction  of  its  charter,  maintained  a  fire  •— a^'N^^^ 
department,  of  which  plaintiff  was  a  member,  attached  to  a  certain  \i,,&v.v/VN^ 
company,  which  used  a  steam  fire  engine  ;  that  it  was  the  dut}'  of  the  c-<v».v__*^ 
city  to  provide  for  that  engine  a  brake  and  to  keep  it  in  good  order  and  oS^a/^^  ' 
repair ;  that  by  reason  of  failure  on  the  part  of  the  city  to  perform  this  XTjL^-t- 
duty,  plaintiff,  while  assisting  to  haul  the  engine  to  a  fire  was  run  over  X^^^T 
and  seriously  injured.  For  the  injury  thus  received  plaintiff  seeks  to  q^^jT^^'^^ 
recover  damages.  _^'^&>-'^-a- 

A  demurrer  to  this  declaration  was  interposed.  A^^*-^"^' 

Henry  &  Dickinson,  and  Herbert  Stout,  for  plaiutiflT.  *o^^^ 

F.  Scott,  and  John  W.  Griggs,  for  defendants.  P-oAje.  2 

Magfe,  J.     It  has  been  settled  beyond  the  possibility  of  further  con-  ^^i"^^;^ 
tention  in  this  state,  that  municipal  corporations  are  not  liable  to  actiou    T\      VV^ 

^  Arguments  omitted.  —  Ed.     '^\Q.yv/-JON^>Ji-  "0.-\>Jb»Su>lj»_,Ajsj 


158 


WILD    V.    PATERSON. 


^] 


"for  neglect  to  perform  or  negligence  in  performing  duties  imposed  on 
them  by  law  and  due  to  the  public,  in  behalf  of  any  individual  suffering^ 

^lamageTjy  reason  of  such  negligence,  unfess  an  action  iF^iven  by 
statute.     Where  the  employees  or  otHcers  of  a  municipal  corporation 


ire  negligent  in  the  performance  of  such  duties,  the  doctrine  of  re- 
spondeat  su^yerior  will  not  apply.  Livermore  v.  Board,  <&c.,  2  Vroom 
508  ;  Pray  v.  Jersey  City,  3  Yroom  394 ;  Cooley  v.  Freeholders,  tbc, 
3  Dutcher  415  ;  Freeholders,  &c.,  v.  Strader,  3  Harr.  108 ;  Condict 
V.  Jersey  City,  17  Vroom  157. 

The  duty  of  the  city  of  Paterson  to  maintain  a  fire  department  is 
manifestly  a  duty  owed  to  the  public  and  imposed  b}^  law.  Any  one 
injured  b}'  negligence  in  the  performance  of  that  duty,  will  be  debarred 
from  action  for  such  injury  by  the  well-settled  rule  above  stated. 

Plaintiff's  contention  is  that  his  case  is  exceptional,  and  not  within 
the  rule,  upon  the  ground  that  the  duty  of  keeping  the  machinery  used 
for  extinguishing  fires  in  good  order,  is,  as  respects  those  who  are 
employed  in  its  use,  a  private  duty,  owed,  not  to  the  public,  but  to  the 
employee. 

But  the  distinction  thus  sought  to  be  made  is,  in  my  judgment, 
merely  specious. 

Jt  flnpg  not,  ^ppenr  whgj.  was  thp  precise  relation  between  plaintiff,  as 
a  member  of  the  fire  department,  and  the  city.  Whether  his  services 
were  voluntarily  rendered  or  were  paid  for,  is  not  disclosed.  But  in 
either  case  the  relation  is  not  the  ordinary  relation  of  master  and  ser- 
vant. Employees  of  such  corporations  in  the  execution  of  its  public 
duties  have  been  heia  to  be  mere  instruments  in  the  performance  ot 
lucli  duties,  and  to  act  as  public  oflieers  charged  with  a  public  service. 
I  Co?idict  V.  Jersey  City,  sujjra. 

The  duty  to  provide  and  maintain  apparatus  for  extinguishing  fireg 
isjjlainly  included  within  the  public  duty  of  establishing  a  fire  depart- 
ment  for  that  purpose.  THe"  cityTas'a  corporation,  derives  from  it  no 
special  benent  or  aavantage.  The  duty  is  single  and  undivided,  and 
although  the  city  must  perform  this  duty  by  means  of  agents  or  oflRcers, 
it  owes  to  them  no  special  dut}',  differing  either  in  kind  or  degree  from 
the  duty  which  it  owes  to  others  in  this  respect.  The  duty  is  of  a  pub- 
lic character,  and  on  grounds  of  public  policy  its  neglect  will  not  give 
a  right  of  action  to  any  individual  in  the  absence  of  a  statute.  If  there 
are  any  reasons  for  a  modification  of  this  rule  with  respect  to  employees 
of  such  corporations  engaged  in  hazardous  service,  they  cannot  be  con- 
sidered by  the  courts.  The  rule  can  only  be  modified  by  the  legisla- 
ture. In  the  absence  of  legislation  the  plaintiff  is  within  the  rule  and 
plainly  without  a  right  of  action. 

For  this  reason  the  city  is  entitled  to  judgment  on  the  demurrer. 


J^  ^^- 


MULCAIRNS   V.  CITY  OF  JANESVILLB. 


159 


<^Xo>,yv^ 


MULCAIRNS   V.  CITY  OF  JANESVILLE. 

1886.     67  Wisconsin,  24.1 

Orton,  J.     The  complaint  substantially  charges  that  the  city,  being 
authorized  so  to  do,  about  the  9th  day  of  August,  1884,  entered  upon 
the  construction  of  a  cistern,  for  the  use  of  the  fire  department  of  said 
cit}',  for  protection  against  fire  ;  that  the  city  was  authorized  to  and  did 
employ  men  in  the  construction  of  the  same,  and  that  about  the  16tU 
da}'  of  said  month  said  city  had  made  an  excavation  for  said  cistern 
and  erected  within  the  same  a  wall  of  stone  masonr}-,  along  the  sides 
of  the  same,  resting  upon  the  bottom  of  said  excavation,  about  40  feet  V>i^^^tAj^t^ 
long,  10  feet  high,  20  inches  in  thickness,  and  about  12  feet  wide  ;  that(_^^^^^^  r^si_a 
it  was  so  constructed  by  the  city,  in  such  a  careless  and  negligent  ^C^^Cka— rfl 
manner,  and  negligently  allowed  to  so  remain,  to  the  knowledge  of  the 
cit}-,  that  on  the  day  last  aforesaid  a  portion  of  it  fell  upon  Thomas 
Mulcairns,  the  husband  of  said  plaintiff,  who  was  employed  by  said 
cit}'  at  that  time  in  shovelling  earth  in  the  bottom  of  said  cistern,  in 
accordance  with  such  employment,  near  said  portion  of  the  wall,  hav- 
ing no  knowledge  of  its  unsafe  condition  and  using  due  care  and  cau-    . 
tiou,  and  caused  his  death.     He  left  the  plaintiff  as  his  widow,   andr;^''''"''^^** 
seven  minor  children  dependent  upon  her  for  support.  ^^  ^'^"'"^'^^ 

The  answer  admits  the  appointment  of  the  plaintiff  as  administratrix,  ^^^*-^-^-^ \ 
the  incorporation  of  the  city,  that  it  was  so  engaged  in  the  construction  '"^■"'-'^^  cA  v 
of  a  cistern,  and  that  part  of  the  wall  thereof  fell  inward,  and  that  Ov^o^^ 
Thomas  Mulcairns  was  injured  thereby,  and  died  in  consequence  <:x>^SJe^v^^/. 
thereof;  but  denies  all  other  allegations,  and  alleges  that  the  cistern ^-'''"-^'•^-J^^^jJL 
was  being  built  by  the  city  with  all  the  care  and  caution  possible  to  be  f^— Oj^^  vj<: 
used  ;  and  that  the  city  employed  workmen  known  to  be  skilful  and  \iOJL  "j* 
careful,  and  used  good  material ;  and  employed  one  James  Shearer  to  y^  -  ^  ; 
superintend  and  m.anage  the  construction  of  the  cistern,  and  that  h( 
was  suitable  to  do  so  ;  and  that  said  cistern  was  constructed  in  a  skil- 
ful manner,  without  any  negligence  on  the  part  of  the  city  ;  and  that  ^ 
the  falling  of  said  wall  was  caused  or  contributed  to  by  the  want  of  T^^^^s*^*'^^'^ 
ordinary  care  of  the  deceased  ;  and  that  the  deceased  entered  upon  his  **"  .^''"'t^ 
work  with  full  knowledge  of  the  dangerous  condition  of  said  wall.            Ajs>jCL   ^  Aj 

The  complaint  most  clearly  states  a  cause  of  action  against  the  city,  V^^v^v.^j^jo-j, 
and  the  first  exception,  which  was  to  overruling  a  demurrer  ore  tenus  «»-^*^r^.^  ^j_,^ 
to  the  complaint,  was  not  error.  The  answer  admits  that  the  wall  was  **"^\iu*>.<jui. 
built  by  the  city,  through  the  agency  and  under  the  superintendence  of  ^^^■'^^iJKvA^ 
James  Shearer,  employed  for  that  purpose  by  the  city,  and  that  wheiri::,<iJuC3ki,a_, 
it  was  built  it  fell  upon  and  killed  the  deceased. 

1.  The  point  made  by  the  learned  counsel  of  the  appellant,  that  the 
city  is  not  liable  because  it  was  in  the  performance  of  a  public  duty  in 
which  the  city,  as  a  municipal  corporation,  had  no  pecuniary  interest, 


Mw, 


1  Statement  and  arguments  omitted.  —  Ed. 


.^'<Jc>-, 


160 


THOMPSON   NAVIGATION    CO.    V.    CITY    OF   CHICAGO. 


and  the  injuiy  was  occasioned  by  the  act  or  omission  of  its  officers  or 
agents,  ma}'  as  well  be  disposed  of  here,  because  it  arises  as  well  upon 
the  pleadings.  James  Shearer  was  not  one  of  the  public  agents  or 
officers  of  the  city,  but  specialij-  employed  to  superintend  this  particu- 
lar work  for  the  city.  Such  is  the  effect  of  the  answer. 
"■  The  case  cited,  and  the  first  one  on  the  question  in  this  state,  of 
Hayes  v.  Oshkosh,  33  Wis.  314,  goes  upon  the  doctrine  generally  rec- 
ognized that  when  the  agents  acting  for  the  city  are  not  in  the  employ- 
ment of  the  cit}-,  but  act  rather  as  public  officers,  such  as  the  fire 
department  provided  for  b}'  law,  and  the  city  does  nothing  more  than 
appoint  its  officers,  such  persons  perform  duties  fixed  b}'  law  and  not 
special  services  contracted  to  be  performed  under  employment  of  the 
cit}'.  The  distinction  between  the  two  cases  is  verj-  wide  and  quite 
apparent.  If  the  cit}'  could  not  be  held  liable  in  such  a  case,  it  never 
could  in  an}- ;  for  jt  is  a  common  cas^f  special  employment  for  the 
performance  of  special  services  t'or  and  on  Eehalf  of  the  ci^~  it  was 
the  leo^al  duty  of  the  city  to"  construct  cisterns"  for  fire  purposes,  and 
it  was  engaged  in  the  fltf.empt,^Hl  performance  of  this  duty  tlirough 
jts  own  private  agencies,  and  not  thi-ougli  tlie  fire  department  or  its" 
officers,  or  other  officers  of  the  city  whose  duty  it  was  to  perform  sucli 
work. 

nie  case  of  Spelman  v.  Portage,  41  Wis.  144,  which  is  clearly  in 
point,  most  clcarl}'  points  out  these  distinctions.  The  distinction  is 
made  perhaps  more  clearh'  in  the  cases  of  Harper  v.  Milwaiikee^  30 
Wis.  365,  and  Little  v.  Madison,  49  Wis.  605.  Both  the  principle  and 
the  distinction  of  cases  are  fully  considered  and  clearly  established  in 
our  own  cases,  so  that  we  need  not  concern  ourselves  very  much  about 
cases  in  other  states,  for  the  above  cases  were  decided  upon  a  full 
examination  of  authorities  elsewhere. 

[Remainder  of  opinion  omitted.] 

Judgment  for  plaintiff  affirmed. 


--«Lscs~»-  rs^i-Qv^^;. — ' — •  • 


^''^^'^^         THOMPSON   NAVIGATION   CO.    v.    CITY  OF  CHICAGO. 

^^^^Xj^  f^-  '^-  ^^isfrict  Court,  N.  J).  Illinois.      1897. 

!^^^*^'^'^■'■~-^^  Grosscup,  J.  This  is  a  libel  in  personam  against  the  city  of 
"^ — "-*-'  Chicago,  growing  out  of  a  collision  between  the  fire  tug  Yo  Semite, 
owned  by  that  city,  and  the  propeller  City  of  Berlin,  owned  b}'  the  libel- 
lant.  The  collision  occurred  in  the  Chicago  river,  near  the  point  where  it 
^A.  branches  into  its  south  and  north  forks.  At  the  time  of  the  collision, 
the  City  of  Berlin  was  lying  in  winter  quarters.  The  circumstances 
of  the  collision  were  such  that  had  the  tug  been  owned  by  private 
owners,  and  engaged  in  a  private  enterprise,  there  could  be  no  doubt 
of  her  liability  for  the  injury  done.    In  saying  this,  I  keep  fully  in  vieTT 


THOMPSON   NAVIGATION   CO.    V.   CITY   OF   CHICAGO. 


161 


the  fact  that  fire  tugs  are  expected  by  the  nature  of  their  duties  to 
make  haste.  The  haste  in  this  case  was  blind  and  thoughtless,  result- 
ing in  a  delay  to  the  tug,  as  well  as  injury  to  the  City  of  Berlin.  In- 
deed, counsel  for  the  city  do  not  seriously  contest  the  fact  of  negligence. 
But  the  fire  tug  was  at  the  time  of  the  collision  owned  b}-  the  city  of 
Chicago,  and  actually  engaged  in  one  of  the  public  duties  that  Chicago, 
as  a  part  of  the  government,  undertakes.  Do  these  facts,  or  either  of 
them,  exempt  her,  or  the  cit}",  responding  in  her  behalf,  from  what 
would  otherwise  be  her  clear  liability  ? 

At  common  law,  one  injured  either  in  his  property  or  person  looks 
for  compensation  to  the  person  or  persons  causing  the  injur3-,  or  to  the 
master  or  principals  of  such  persons,  where  the  injury  was  done  within 
the  scope  of  their  agenc}'  or  service.  In  admiralty  the  rule  is  this : 
The  vessel  committing  the  unlawful  injury  is  considered  the  ofi'ender, 
and  the  owner  is  mulcted  to  the  extent  of  his  interest  in  the  vessel ; 
not  because  he  stands  in  the  relation  of  principal  or  master  to  the  crew, 
but  alone  because  of  the  fact  of  ownership.  Thus,  under  laws  pre- 
ventive of  piracy  or  smuggling,  the  vessel  maj-  be  seized,  condemned, 
and  sold,  notwithstanding  the  crew  committing  the  unlawful  acts  were 
engaged  by  the  ov/ner  for  a  lawful  enterprise  only,  and  were,  in  the, 
commission  of  the  unlawful  acts,  wholly  outside  the  scope  of  their  en- 
gagement. U.  /S.  V.  T/ie  Maleh  Adliel^  2  How.  210.  Commenting 
upon  this  apparent  anomal}'  of  maritime  jurisprudence,  and  showing 
that  the  doctrines  advanced  in  the  case  then  under  consideration  were 
not  different  from  those  prevailing  generally'  in  maritime  law,  Mr.  Jus- 
tice Story,  at  page  234,  speaks  as  follows:  ^'  The  ship  is  also,  by  the( 
general  maritime  law,  held  responsible  for  the  torts  and  misconduct  ot| 


the  master  and  crew  thereof,  whether  arising  from  neglio-ence  or  a) 
wilful  disregard  of  dut}' ;  as,  for  example,  in  cases  of  collision  and] 
other  wrongs  done  upon  the  high  seas  or  elsewhere  within  the  admiralty] 
and  maritime  jurisdiction,  upon  the  general  policy  of  that  law  which/ 
looks  to  the  instrument  itself,  used  as  the  means  of  the  mischief,  as 
the  best  and  surest  pledge  for  the  compensation  and  indemnity*  to  tht 
injured  party." 

It  is  thus  apparent  that  the  liability  of  the  owner,  to  the  extent  of 
his  vessel,  for  injuries  caused  in  a  collision  by  negligence  or  miscon- 
duct, is  not  dependent  upon  the  relation  of  master  and  servant,  or 
principal  and  agent,  existing  between  him  and  the  crew  manning  the 
vessel,  but  rests  solely  upon  the  fact  of  ownership.  The  ship,  which,  in'^ 
contemplation  of  raaritinu'  law,  is  not  the  hulk  and  machinery  only,  but 
includes  tlu!  crew  as  well,  is,  as  such,  the  offonder,  and  tlie^  ensuing 
losses  reach  the  ownor  simply  because-  f^f  l"'s  ■rclaliouship  to_th^ 
oricender.  In  Rome,  it  is  said  that,  wlien  the  owner  of  slaves  was 
assassinated,  every  slave  belonging  to  him,  however  otherwise  innocent, 
was  put  to  death.  The  penalty  came  not  as  the  result  of  participation, 
but  as  the  result  of  relationship.  Tlie  maritime  law,  for  justifi.able 
public  purposes,  inverts  this  mandate,  putting  every  owner,  by  virtue 


Nr^^^^ 


cy-3-<^-4> 


SL-ex_K_*^ 


162 


THOMPSON   NAVIGATION   CO.   V.   CITY   OF   CHICAGO. 


of  such  relation,  to  the  duty  of  compensation  for  losses  inflicted  by  his 
ship  property,  to  the  extent,  at  least,  of  the  value  of  such  property. 
Nor  is  this  liabilit}^  of  tJie  owner  indirect  alone,  for  the  admiralty  rules 
of  the  supreme  court  provide  (Rule  15)  "  that,  in  all  suits  for  damage 
b}'  collision,  the  libellant  maj'  proceed  against  either  the  ship  and 
master,  or  against  the  owner  alone  in  2)ersonam."  The  method  of  pro- 
cedure chosen  does  not  change  the  substantive  right  or  liabilit}'.  In 
either  case  the  ship  is  the  offender.  If  the  procedure  be  against  the 
ship  alone,  resulting  in  seizure  and  sale,  the  owner  is  only  indirectly 
reached ;  but,  if  it  be  against  the  owner  in  personam^  the  remedy 
against  him  is  direct.  The  substantive  right  is  compensation  for  the 
vnjur^-,  and  can  be  either  b}-  wa}-  of  the  ship  or  from  the  owner 
iirectl}-. 

A  firm  grasp  of  this  principle  of  maritime  law  clears  this  case  of  its 
lifEculties.  At  common  law  the  city  is  not  liable  for  the  negligent  acts 
of  its  fire  department,  for  the  reason  that  the  members  of  the  fire  de- 
i>artment  are  not  the  servants  ot  me  cit}'  in  its  corporate  capacity.  The 
egligence  of  the  firemen,  therefore.  Is  not  attributable  to  the  city. 
But  in  the  case  under  consideration  the  injury  done^by  the  vessel. 
mcluding  its  crew,  to  the  libellant,  is  chargeable  to  the  owner,  by  virtue 
«H~I,K§"mere  fact  of  o"whershrp,  and  can  be  collected,  directly,  by  seizui^e 
'^  the  vessel,  or,  indirectly,  by  a  suit  in  personam.  In  either  case  the 
/nability  rests,  not  in  the  relation  of  principal  and  agent,  or  master  and 
€ervant7l7nt"tn"the  ij'ate  facl  of  ownership. 

^"^IBut,  though  such  liability  exists,  reasons  of  public  policy  may,  in 
some  cases,  exempt  the  owner  from  suit.  The  government,  as  sover- 
eign, for  instance,  declines  to  be  made  compulsorily  amenable  to  the 
courts  upon  even  its  just  obligations.  This  exemption,  however,  is 
founded  entirely  in  public  policy  i^The  Siren,  7  Wall.  152),  and  ought 
not  to  be  extended  to  cases  where  such  considerations  do  not  intervene. 
In  England,  I  think,  they  do  better.  In  claims  arising  against  public 
vessels,  the  apparentl}-  conflicting  right  of  the  sovereign  to  exemption 
from  suit,  and  her  duty  to  respond  to  just  claims,  are  both  maintained 
by  a  procedure,  efl'ective,  though  somewhat  fictitious.  A  petition  of 
right  is  addressed  by  the  aggrieved  person  to  the  lords  in  admiralty, 
representing  the  crown,  who,  in  turn,  direct  their  proctor  to  appear  and 
answer  a  suit  to  be  commenced  in  the  admiralty  court.  This  is  equiva- 
lent to  a  waiver  by  the  crown  of  its  privilege  as  a  sovereign,  and 
to  a  consent  that  the  rights  of  the  parties  be  tried  and  determined 
in  the  suit  as  between  sulyect  and  subject.  There  appears,  however, 
to  be  no  way  of  making  the  government  of  the  United  States,  or 
of  a  state,  parties  to  such  a  proceeding,  because  no  procedure  has  been 
invented  here  whereby  the  right  of  immunity  from  suit  is  waived.  But 
the  city  of  Chicago  is,  by  law,  amenable  to  suit  and  judgment  upon  all 
just  claims  that  may  be  brought  against  it.  The  doctrine  of  pubhc 
policy,  therefore,  under  which  this  exemption  is  accorded  to  sovereigns, 
stops  short  of  city  government.     The  law  by  making  such  cities  suable 


THOMPSON    NAVIGATION   CO.    V.    CITY   OF   CHICAGO.  163 

abolishes  the  doctrine  in  what  might  otherwise  be  its  application  to  city 
governments.  The  legislative  will  has,  in  effect,  decreed  that  there  is 
no  public  policy  excepting  cities  from  suit.  The  city  is  suable,  and 
may  be  decreed  to  pay  as  a  private  owner  where  a  case  is  proved.  This 
clearly  differentiates  this  case  from  The  Siren,  supra. 

One  other  consideration  alone  remains :  I  have  held,  on  the  strength 
of  The  Fidelity,  16  Blatchf.  569,  decided  by  Chief  Justice  Waite 
on  the  circuit,  that  an  action  in  rem  cannot  lie  against  this  fire  boat. 
Will  that  prevent  a  decree  in  23e'>'S07iani  against  its  owner?  The 
difference  between  mere  procedure  and  substantive  right  must  be 
steadily  borne  in  mind.  The  latter  alone  determines  the  right  of 
some  judgment  or  redress.  The  former  only  fixes  the  method  of 
reaching  it.  A  seizure  of  the  vessel  is  onl}'  a  species  of  execution  in 
advance  of  judgment.  It  is  usuall}^  permissible  in  admiralty,  because, 
under  ordinary  circumstances,  most  effective  and  equitable.  But  public 
policy  prevents  its  application  to  such  instrumentalities  of  emergency 
as  a  fire  tug.  A  city  cannot  be  left  to  burn  while  a  contest  over  a  few 
dollars  of  damage  is  going  on.  The  law,  therefore,  out  of  considera- 
tions of  public  policy,  forbids  such  seizure,  or  any  process  that  would 
disarm  the  cit}',  evgji-temporarily,  of  its  equipment  to  put  down  fires 
or  like  dangers.  TBut  exemption  of  the  owner  of  the  boat  from  one  of 
the  ordinar}-  processes  of  the  court  is  not,  either  in  logic  or  law,  a  grant 
of  immunity  against  liabilit}-,  through  some  other  procedure,  not  sul)- 
ject  to  such  objections.  The  consideration  of  public  policy  extends 
only  to  the  mischief  to  be  averted.  To  give  it  a  wider  application 
would  make  it  an  instrument  of  injustice.  An  apt  illustration  of  this 
limitation  on  procedure  onl}'  is  seen  in  the  law  which  exempts  cities,  in 
the  common-law  court,  from  seizure  of  their  property  upon  execution. 
But  it  has  never  been  urged  that,  because  of  that,  they  were  not  suable 
at  all,  or  that  judgments  entered  against  them  were  in  no  way 
enforceable. 

My  coil clusion_is^jtbat_the, city  of  Chicago,  as  owner,  at  the  time  of 
the  collision,  of  the  fire  bont,^  is  rpspnnsihlR  to  t.ho  libellant  in  an  action 
xn  personam  to  the  e;s:tent  of  the  value  of  such  fire  boat  for  the  iniuries_ 
caused.  L  recognize  that  in  this  conclusion  I  depart  from  the  case  ofj 
'I'he  Fidelity,  supra^  but  believe  raj'self  to  be  in  consonance  with  the 
doctrine  laid  down  in  The  Sireti,  supra,  and  The  Malek  Adhel,  supra. 

Decree  accordingly. 


s% 


^^3rT-      )^— GiXa 


164      SPKINGFIELD   FIEE   INS.    CO.   V.   VILLAGE    OF    KEESEVILLE. 


SPRINGFIELD   FIRE  &c.  INSURANCE   CO.  v.  VILLAGE   OF 

KEESEVILLE. 

1895.     148  New  York,  46.1 

Appeal  from  judgment  of  the  General  Term  of  the  Supreme  Court 
in  the  Third  Judicial  Department  [reported  in  80  Hun,  162]. 

The  complaiut  sets  forth  that  the  plaintiff  is  a  Massachusetts 
corporation  and  that  the  defendant  is  a  village  organized  under  the 
provisions  of  chapter  291  of  the  Laws  of  the  state  of  New  York, 
passed  in  1870,  and  the  amendments  thereto;  that  the  plaintiff  car- 
ried on  the  business  of  fire  insurance  within  the  limits  of  the  defend- 
ant, and  for  the  privilege  of  so  doing,  and  of  having  the  protection 
of  the  water  works  and  fire  department  and  appliances  of  defendant, 
had  paid  an  annual  tax  to  the  defendant;  that  the  defendant  had  a 
system  of  water  works  and  fire  appliances,  which  were  maintained 
by  taxes  levied  upon  all  its  taxable  inhabitants,  including  plaintiff 
and  other  insurance  companies,  and  by  water  rents  paid  by  such 
inhabitants.  The  complaint  then  proceeds  to  set  forth  the  insurance 
^  Vaa-^-  by  the  plaintiff  of  property  of  one  Emily  E.  Brewer,  for  a  percentage 
^^^  less  than  for  like  property  outside  the  limits  of  the  water  and  fire 

protection,  and  the  destruction  by  fire  thereof ;  in  consequence  where- 
-  of  the  plaintiff  had   paid   to   her,   under   its   contract  of   insurance, 

^^^.^-^'-^^^^ $4,450.  The  complaint  then  sets  forth  the  assignment  to  plaintiff 
'~w^^-*^^by  Emily  E.  Brewer  of  all  claims  and  damages  against  the  de- 
-«JL-A.^^^  fendant,  by  reason  of  said  fire  and  damages,  and  alleges  that 
_  -fc*>  "^  "  at  the  time  of  the  aforesaid  fire,  the  defendant  had  wrongfully 
Xv-Vyv-r^  and  negligently  allowed  and  caused  its  said  water  works,  pumps, 
J  ^\V.  pipes  and  fire  appliances  to  become  and  be  out  of  repair,  broken  and 
^  '  ^  "weakened,  stopped  with  mud  and  other  foreign  objects,  and  unfit  for 
.    ^"  use,  to  such  extent  that  water  could  not  be  thrown  or  put  upon  said 

'^■^'■\*}i>^ dwelling  house  to  extinguish  the  fire  therein;  that  when  the  hose  was 
■■^^^-^^'^'^^••laid  and  opened,  and  ready  to  throw  water  upon  the  fire  in  said  house, 
.  Co  said  fire  was  very  slight  and  had  done  very  little  damage;  that  if 

•Vn/ooi_A  said  fire  appliances  and  water  works  had  been  in  proper  working 
s^vji-^-I-.  order  said  fire  would  and  could  have  been  extinguished  without 
■^  v^  damaging  said  house  to  exceed  three  hundred  dollars;  that  at  the 
o^jvN.  "iA/v^  time  of  said  fire,  and  for  several  years  previous  thereto,  the  defend- 
^^ ^^  ant,  under  and  in  pursuance  of  the  powers  granted  it  by  the  laws  of 
V^^C^''^^the  state  of  New  York  ^  had  assumed  to  maintain  water  works  and 


1  Statement  abridf^ed.     Arguments  omitted.  —  En. 

2  "  The  comj)laint  must  be  read  in  connection  with  the  statutes  poveruing  the  de- 
fendant ;  they  are  as  much  a  part  of  the  complaint  as  if  written  in  it. 

"The  defendant  was  authorized  by  Chapter  181  of  the  Laws  of  187.5,  and  various 
acts  amendatory  thereof,  to  construct  aud  maintain  water  works  to  supply  its  inhabi- 
tants with  water. 


*y>-cy-A  ^>^-^-a~-K. 


SPEINGFIELD   FIRE    INS.    00.    V.   VILLAGE    OF   KEESEVILLE.       165 

fire  appliances  and  a  fire  department  for  the  purpose,  among  other 
things,  of  protecting  the  property  of  the  inhabitants  of  defendant 
against  loss  by  fire,  of  all  which  plaintiff  and  its  assignor  had  notice, 
and  in  reliance  thereon  said  assignor  paid  taxes  to  defendant  to 
maintain  the  same,  and  plaintiff  paid  taxes  to  defendant  for  said 
purpose,  and  insured  property  at  reduced  rates  as  aforesaid ;  .  .  . 
that  plaintiff's  aforesaid  loss  of  $4,450,  to  the  extent  of  at  least 
$4,150,  was  caused  solely  by  the  negligence  and  wrongful  and 
unlawful  acts  of  defendant,  in  failing  to  keep  its  water  works  and 
fire  appliances  in  proper  working  order,  and  in  failing  to  employ 
competent  men  to  manage  and  care  for  the  same."  The  complaint 
then  demanded  judgment  for  the  said  sum  of  $4,150. 

The  defendant  demurred  to  the  complaint,  on  the  ground  that  it 
did  not  state  facts  sufficient  to  constitute  a  cause  of  action. 

At  the  General  Tei'm  the  demurrer  was  overruled. 

Chester  B.  McLaughlin^  for  defendant. 

A.   W.  Boynton^  for  plaintiff. 

Gray,  J.  The  learned  justice  who  spoke  for  the  General  Term,  in 
a  very  elaborate  and  interesting  opinion,  proceeded,  very  correctly, 
as  I  think,  upon  the  assumption  that  the  negligence  charged  against 
the  defendant  in  the  complaint  related  entirely  to  its  water  works 
system.  In  the  view  which  we  take  of  the  matter,  it  is  of  compara- 
tively little  consequence  whether  the  plaintiff  bases  its  right  of  action 
upon  negligence  with  respect  to  the  fire  department  as  such,  or  to 
the  water  department  as  such.  But  the  fair  reading  of  the  com- 
plaint undoubtedly  warrants  the  assumption  of  the  learned  justice  at 
General  Term. 

If  I  correctly  apprehend  the  reasoning,  which  led  the  General 
Term  to  the  conclusion  that  there  was  a  municipal  liability  upon  an 
admission  of  the  facts  set  forth  in  the  complaint,  it  rests,  in  the 
main,  upon  two  theories.  In  the  first  place  it  is  held  that  by  the 
voluntary  assumption  on  the  part  of  the  defendant  of  the  power  con- 
ferred by  statute  to  construct  and  maintain  water  works,  it  became 
responsible  for  the  proper  exercise  of  such  power  and  that  such 
responsibility  is  necessarily  demanded  in  the  interest  of  an  efficient 
public  service,  and  the  inhabitants,  who  have  contributed  to  the 
maintenance  of  such  a  public  work,  have  a  right  to  hold  the  defend- 
ant to  the  exercise  of  reasonable  care  and  diligence  and  to  a  liability 
for  a  failure  to  do  so.  In  the  next  place,  it  is  held,  while  not  deem- 
ing that  the  defendant  had  engaged-  in  a  private  corporate  business, 

"The  president  and  trustees  constitute  the  board  of  water  commissioners.  (Chap. 
74,  Laws  of  1891.) 

"  The  defendant  receives  rents  for  supplying  water ;  it  has  control  over  all  the  em- 
ployees connected  with  the  water  works ;  it  can  employ  and  discharge  them  at  plea- 
sure ;  they  are  its  servants.  The  construction  and  maintenance  of  the  water  works  is 
something  that  was  not  forced  upon  it  by  the  power  of  the  state ;  it  could  act  under 
the  law  authorizing  it  to  construct  and  maintain  water  works,  or  refuse  to  act,  at  its 
pleasure.  .  .  ."    Herrick,  J.,  in  80  Hnn,  pp.  IG"',  168.  —  Ed. 


16G      SPRINGFIELD    FIRE    INS.    CO.    V.    VILLAGE    OF    KEESEVILLE. 

conducted  for  its  own  benefit  and  not  for  the  general  public,  never- 
theless, that  the  defendant  having  agreed  to  erect  and  take  charge  of 
the  public  work  and  enterprise  for  the  public  within  its  boundaries,  if 
there  is  a  failure  to  exercise  reasonable  care  and  diligence  in  main- 
taining it,  there  has  been  a  breach  of  an  implied  contract,  for  which, 
if  injury  results,  an  action  will  lie.  Holding  these  views,  the  learned 
General  Term  felt  compelled,  because  of  the  admission  by  the  defend- 
ant, through  its  demurrer,  of  the  allegations  of  wrongful  and  neglect- 
ful conduct  in  relation  to  the  maintenance  of  its  water  works,  to  hold 
that  the  plaintiff  made  out  a  good  cause  of  action. 

The  proposition  that  such  a  liability  rests  upon  a  municipal  cor- 
poration, as  is  asserted  here,  is  somewhat  startling  and  I  think  the 
learned  General  Term  justices  have  misapprehended  the  nature  of  the 
responsibility,  which  devolved  upon  the  defendant  in  connection  with 
its  maintenance  of  a  water  works  system,  as  well  as  the  character  of 
the  power  which  it  was  authorized  to  exercise  in  relation  thereto.  1 
might  remark,  in  the  same  spirit  of  criticism  which  was  assumed  by 
the  learned  justice  at  General  Term,  that  while  the  efficiency  of  the 
public  service  would  be  promoted  by  holding  municipal  corporations^ 
To  the  exercise  of  reasonable  care  and  diligence  in  the  performance^ 
of  municipal  duties  and  to  a  liability  for  injury  resulting  from  a 
failure  in  such  exercise,  the  application  of  that  doctrine  to  such  a 
case  as  this  might,  and  probably  would,  be  highly  disastrous  to 
municipal  governments.  A  little  reflection  will  show  that  a  multi- 
Tudeof  actions  would  be  encouraged,  hy  five  insurance  companies,  as 
by  individuals,  and  that  cases  have  arisen,  and  may  still  arise,  where 
an  extensive  conflagration  might  bankrupt  the  municipality,  it  if 
bould  be  rendered"TTable  for  the  damages  or  losses  sustained,. 

The  distinction  l^etween  the"  public  ana  private  powers  conferred 
upon  municipal  corporations,  although  the  line  of  demarcation  at 
times  may  be  difficult  to  ascertain,  is  generally  clear  enough.  It  has 
been  frequently  the  subject  of  judicial  discussion  and,  among  the 
numerous  cases,  it  is  sufficient  to  refer  to  Baileij  v.  The  Mayor 
(3  Hill,  581);  Lloyd  v.  The  Mayor  (5  N.  Y.  369)  and  3Iaxmilian  v. 
The  Mayor  {^2  id.  160).  The  opinion  in  Darlivgtony.  The  Mayor 
(31  N.  Y.  164)  is  also  instructive  upon  the  subject.  When  we  find 
that  the  power  conferred  has  relation  to  public  purposes  and  is  for 
the  public  good,  it  is  to  be  classified  as  governmental  in  its  nature 
and  it  appertains  to  the  corporation  in  its  political  character.  But 
when  it  relates  to  the  accomplishment  of  private  corporate  purposes, 
in  which  the  public  is  only  indirectly  concerned,  it  is  private  in  its 
nature  and  the  municipal  corporation,  in  respect  to  its  exercise,  is 
regarded  as  a  legal  individual.  In  the  former  case,  the  corporation 
is  exempt  from  all  liability,  whether  for  non-user  or  misuser;  while 
in  the  latter  case,  it  may  be  held  to  that  degree  of  responsibility 
which  would  attach  to  an  ordinary  private  corporation.  Then,  the 
Investiture  of  municipal  corporations  by  the  legislature  with  admin- 


SPRINGFIELD   FIRE    INS.   GO    V.   VILLAGE    OF   KEESEVILLE.      167 

istrative  powers  may  be  of  two  kinds.  It  may  confer  powers  and 
enjoin  their  performance  upon  the  corporation  as  a  duty;  or  it  may 
create  new  powers  to  be  exercised  as  governmental  adjuncts  and 
make  their  assumption  optional  with  the  corporation.  Where  a  duty 
specifically  enjoined  upon  the  corporation  as  such  has  been  wholly 
neglected  by  its  agents  and  an  injury  to  an  individual  arises  in  con- 
sequence of  the  neglect,  the  corporation  will  be  held  responsible. 
{Maijor  V.  Furze,  3  Hill,  612,  619.)  So,  in  McCarthy  v.  Syracuse 
(46  N.  Y.  194),  it  was  held  that  where  a  duty  of  a  ministerial  charac- 
ter is  imposed  by  law  upon  the  corporation,  a  negligent  omission  to 
perform  that  duty  creates  a  liability  for  damages  sustained.  Such 
responsibility,  however,  would  not  attach  to  the  corporation  where  it 
has  voluntarily  assumed  powers,  authorized  by  the  legislature  under 
some  general  provision  respecting  municipalities  throughout  the  state 
and  permissive  in  their  nature;  and  at  this  point  I  touch  one  of  the 
theories  upon  which  the  General  Term  decision  seems  to  rest.  In 
such  a  case  —  and  I  speak,  of  course,  of  legislative  acts  which  are 
general  in  their  nature  and  scope  —  the  assumption  by  the  municipal 
corporation  is  of  a  further  function  of  self,  or  local,  government  and 
such  a  power  is  discretionary  in  its  exercise,  and  carries  with  it  no 
consequent  liability  for  non-user  or  misuser.  In  the  legislature  reside 
the  power  and  force  of  government,  confided  to  it  by  the  People  under 
constitutional  restrictions.  In  the  creation  of  municipal  corpora- 
tions subordinate  commonwealths  are  made,  upon  which  certain 
limited  and  prescribed  political  powers  are  conferred  and  which  enjoy 
the  benefits  of  local  self  government.  {PeojAe  ex  rel.,  etc.,  v.  Detroit, 
28  Mich.  228.)  When,  in  addition  to  those  general  powers  which 
are  prescribed  upon  the  creation  of  a  municipal  corporation,  general 
statutes  permit  the  assumption  of  further  powers  as  a  means  of  bene- 
fiting the  portion  of  the  public  in  the  particular  locality,  they  invest 
the  corporation  availing  itself  of  the  permission  with  just  so  much 
more  governmental  power.  Just  as  the  general  powers  deposited 
with  the  various  municipalities  are  exercised  by  them  in  a  qxiasi 
sovereign  capacity,  so  would  any  added  powers  designed  for  the  gen- 
eral public  good,  though  optional  with  the  corporation  as  to  their 
assumption,  and  in  their  exercise  and  performance  local,  be  exer- 
cised. They  are  not  special,  as  being  designed  for  and  granted  to  a 
particular  municipality;  for  they  are  applicable  to  every  part  of  the 
body  politic  where  municipal  government  exists.  Such  powers,  in 
legal  contemplation,  appertain  to  the  municipal  corporation  as  such, 
and  may  be  adopted  as  a  part  of  the  governmental  system. 

The  acts,  under  which  the  defendant  was  authorized  to  constrnnt, 
and  maintain  a  system  of  water  works,  constitute  a  general  law, 
applicable  to  all  incorporated  villages  in  the  state.  They  impose  no 
duty  and,  when  availed  of,  the  task  undertaken  is  discretionary  in 
its  character.  Thegrant  of  power  must  h^  vPcrarHf^ri  ag  exclu°"-"l^ 
for  public  purposes  and  as  belonging  to  the  municipal  corporation, 


\ 


168      SPRINGFIELD   FIRE   INS.   CO.   V.   VILLAGE   OF   KEESEVILLE. 

when  assumed,  in  its  public,  political  or  municipal  character.  In 
Bailey  v.  The  Mayor  (3  Hill,  531),  to  which  reference  is  made  in 
the  opinion  below,  the  city  of  New  York,  at  a  very  early  day,  was 
authorized  by  special  legislation  to  engage  in  the  work  of  supplying 
^ss  citizens  with  water  and  to  acquire  lands  and  water  rights  for  the 
purpose  and,  as  it  is  clear  from  the  reading  of  the  opinion  of  Chief 
Justice  Nelson,  the  city  was  regarded  in  the  light  of  any  other  pri- 
vate company,  because  of  the  special  franchises  conferred.  Assum- 
ing that  we  could  regard  the  doctrine  of  that  case  as  authoritative  at 
the  present  day,  as  to  which  there  has  been,  and  might  be,  some  ques- 
tion, (see  Darlington  \.  The  Mayor ^  etc.,  of  New  York,  supra),  the 
decision  is  inapplicable  to  the  present  case.  In  Hunt  v.  The  Mayor 
(109  N.  Y.  134)  the  case  turned  upon  the  performance  by  the  city 
of  the  duty  cast  upon  it  to  keep  its  streets  in  a  safe  condition  for 
travel.  In  Cain  v.  Syracuse  (95  N.  Y.  83),  the  discussion  was  as  to 
the  nature  of  the  duty  imposed  upon  the  defendant  by  the  power  in 
its  charter  to  pass  ordinances,  among  other  things,  for  the  razing  of 
buildings  which  had  become  dangerous  by  reason  of  fire.  The  failure 
of  the  common  council  to  pass  a  resolution  in  respect  to  the  building 
in  question  was  not  deemed  to  be  a  neglect  of  a  duty.  It  was  a  dis- 
cretionary matter.  Nothing  was  decided  in  that  case,  which  con- 
trols the  decision  of  the  present  case,  or  which  affects  the  discussion 
materially. 

Nor  can  we  assent  to  the  view  that  the  defendant  sustains  such  an 
implied  contractual  relation  to  the  public  within  its  boundaries,  with 
respect  to  the  construction  of  this  public  work,  as  to  be  responsible 
for  a  failure  to  exercise  reasonable  care  and  diligence  in  respect  to 
its  maintenance.  If  the  views  which  I  have,  somewhat  briefly,  ex- 
pressed are  correct,  the  defendant  exercised  a  function  which,  like 
all  governmental  functions,  was  purely  discretionary.  What  it  under- 
took to  do,  when  availing  itself  of  the  privilege  of  the  general  act, 
was  to  provide  for  the  local  convenience  of  its  inhabitants. 

The  industry  of  the  defendant's  counsel  has  collated  a  great  num- 
ber of  decisions  by  the  courts  of  other  states,  which  indicate  a  very 
general  view  that  the  powers  conferred  by  the  law  of  the  state  upon 
its  municipal  corporations  to  establish  water  works  and  fire  depart- 
ments, are,  in  their  nature,  legislative  and  governmental.  From 
them  I  may  select  one  or  two.  In  Edgerly  v.  Concord  (62  N.  H.  8), 
it  was  said  by  tlie  court:  "As  a  part  of  the  governmental  machinery 
of  the  state,  municipal  corporations  legislate  and  provide  for  the 
customary  local  convenience  of  the  people  and  in  exercising  these 
discretionary  functions  the  corporations  are  not  called  upon  to 
respond  in  damages  to  individuals,  either  for  omissions  to  act  or  in 
the  mode  of  exercising  the  powers  conferred  on  them  for  public  pur- 
poses and  to  be  exercised  at  discretion  for  the  public  good.  For 
injuries  arising  from  the  corporation's  failure  to  exercise  its  public, 
legislative  and  police  powers,  and  for  the  manner  of  executing  those 


SPRINGFIELD   FIRE   INS.   CO.   V.   VILLAGE   OF   KEESEVILLE. 

powers  there  is  no  remedy  against  the  municipality,  nor  can  an 
action  be  maintained  for  damages  resulting  from  the  failure  of  its 
otBcers  to  discharge  properly  and  efficiently  their  official  duties." 

In  Tainter  v.  Worcester  (123  Mass.  311),  it  was  said  by  the  court: 
"  The  protection  of  all  buildings  in  a  city  or  town  from  destruction 
or  injury  by  fire  is  for  the  benefit  of  all  the  inhabitants  and  for  their 
relief  from  a  common  danger;  and  cities  and  towns  are,  therefore, 
authorized  by  general  laws  to  provide  and  maintain  fire  engines,  etc., 
to  supply  water  for  the  extinguishment  of  fires.  The  city  did  not  by 
accepting  the  statute  and  building  its  water  works  under  it  enter  into 
any  contract  with,  or  assume  any  liability  to,  the  owners  of  property 
to  furnish  means  or  water  for  the  extinguishment  of  fires  upon  which 
an  action  can  be  maintained." 

In  Maxmilian  v.  The  Mayor  (62  N.  Y.  160),  the  reasoning  of  the 
opinion  permits  a  clear  inference  that  this  defendant  did  not,  by 
accepting  the  provisions  of  the  statutes,  assume  a  duty  of  the  kind 
which  arises  from  the  grant  of  a  special  power.  Judge  Folger  uses 
this  language,  in  his  discussion  of  the  two  kinds  of  duties  which  are 
Imposed  upon  a  municipal  corporation:  "The  former"  (referring  to 
the  case  of  a  grant  of  a  special  power),  "  is  not  held  by  the  munici- 
pality as  one  of  the  political  divisions  of  the  state."  Again  he  says: 
"Where  the  power  is  intrusted  to  it  as  one  of  the  political  divisions 
of  the  state,  and  is  conferred  not  for  the  immediate  benefit  of  the 
municipality,  but  as  a  means  to  the  exercise  of  the  sovereign  power 
for  the  benefit  of  all  citizens,  the  corporation  is  not  liable  for  non- 
user,  nor  for  misuser  by  the  public  agents;  "  citing  Eastman  v.  Mere- 
dith, (36  N.  H.  284). 

This  defendant,  precisely,  is  entrusted  with  the  power  to  main- 
tain its  water  works,  because  it  is  one  of  the  political  subdivisions 
of  the  state  to  which  the  general  act  has  reference  in  its  general  grant 
of  power  or  privilege. 

Nor  does  the  fact  that  water  rents  are  paid  by  the  inhabitants  of  I 
the  defendant  affect  the  question.     This  fact  is  made  use  of  to  show] 
the  private  corporate  character  of  the  water  works  system ;  and  thel 
suggestion  is  that  profit  or  benefits  accrue  to  the  defendant  wherebyj. 
tne  corporate  undertaking  is  affected  with  a  private  interest.    JBul\^ 
that  is  an  incorrect  notion.     The  imposition  TTf  water  rents  is  but  s  ' 
mode  of  taxation  and  a  part  oT'the  general  seheine  for  the  purpose  ol 
raisiiiii  revenue  witli  which  to  carry  on   the  work  of  government.     T  ' 
profits  accrue  over  the  expense  of  the  maintenance  of  the  system, 
they  go  to  benefit  the  public  by  lessening  the  general  burden  o: 
taxation. 

The  fallacy,  as  it  seems  to  me,  which  affects  the  argument  that  the 
municipal  corporation  can  be  made  liable  for  the  non-user  or  misuser 
of  its  power,  consists  in  that  it  fails  to  appreciate  the  true  nature  of 
the  function  which  the  corporation  performs.  It  adds  to  its  political 
machinery  for  the  purpose  of  benefiting  and  of  protecting  its  inhabi- 


170 


SALT   LAKE    CITY   V.    HOLLISTER. 


-'^-'^-'  x'tants.  There  is  nothing  connected  with  the  work,  which  is  not  of 
^^-^x-o  \  a  governmental  and  public  nature.  It  is  in  no  sense  a  private  busi- 
^>^v-iL-5>._\kness,  and  the  authority  to  construct  the  works  was  given  to  it  by  the 
>i*Aj>£ijL<_  legislature,  not  at  its  own  particular  instance  or  application,  but 
ecause  it  was  one  of  the  political  subdivisions  of  the  state  and,  as 
uch,  was  entitled  to  exercise  it.  How  could  it  justly  be  said  that 
he  maintenance  of  the  water  works  system,  any  more  than  of  a  fire 
epartment,  was  a  matter  of  private  corporate  interest?  Is  it  not 
for  all  the  inhabitants  and  for  their  good  and  protection?  No  interest 
was  designed  to  be  subserved,  other  than  that  of  adding  to  the  powers 
of  a  community  carrying  on  a  local  government.  If  that  is  true,  the 
alternative  is  that  being  for  public  purposes  and  for  the  general  wel- 
fare and  protection,  the  defendant  assumed  a  governmental  function 
and  comes  under  the  sanction  of  the  rule  which  exempts  government 
from  suits  by  citizens. 

Further  elaboration  of  the  subject  is  quite  possible ;  but  the  views 
expressed  seem  sufficient  to  justify  the  conclusion  that  the  determin- 
ation reached  by  the  General  Term  was  erroneous. 

The  order  and  judgment  appealed  from  should  be  reversed  and 
the  judgment  entered  at  the  Special  Term  should  be  affirmed,  with 
costs. 

All  concur  (Bartlett,  J.,  upon  grounds  stated  in  the  opinion,  and 
also  upon  the  further  ground  that  this  court  decided  the  principle  here 
involved  in  Hughes  v.  The  County  of  Monroe,  147  N.  Y.  49). 

Ordered  accordingly. 


VNAAA/Vv 


SALT  LAKE   CITY   v.   HOLLISTER. 

1886.     118  U.  S.  25G.1 

Appeal  from  the  Supreme  Court  of  the  Territory  of  Utah. 
Suit  b}'  the  city,  against  the  U.  S.  collector  of  internal  revenue,  to 
recover  the  sum  of  $12,057.75  illegally  exacted  by  him  for  a  special 
tax  upon  spirits  alleged  to  have  been  distilled  by  the  city. 

The  answer  of  the  defendant  alleges  that  the  tax  was  legall}^  assessed, 
and  avers  that  the  plaintiff,  during  all  the  time  for  which  said  assess- 
ment was  made,  was  actually  engaged  in  distilling,  producing,  and  deal- 
•  -^  ing  in,  as  distiller,  said  spirits  so  assessed,  and  said  assessment  of  said 

^-*-  \j«~^'V%allon  tax  was  made  upon  distilled  spirits  actually  produced  b}'  the 
■*.A.r^^^->-j«^  plaintiff,  and  upon  which  plaintiff  had  not  paid  tlie  gallon  tax  required 
»v>-Oo~-  by  law,  said  spirits  not  having  been  deposited  in  the  bonded  ware- 
"wtr-u.  ^JC  house  of  the  United  States  by  the  plaintiff,  as  required  by  law,  but 
r^^Q^Q  \  taken  from  said  distillery  by  the  j)laintiff,  after  having  been  produced 
^^  'O^/v.^  '^"^^  distilled  as  aforesaid,  and  sold  by  said  plaintiff,  and  the  proceeds 
\jK^  '         of  said  sale  turned  into  the  treasur}-  of  the  plaintiff. 

lrv^>^^^    \  Kjv_f^-_^       h  -^  •  ^  Statement  abridged.  —  Ed. 


SALT   LAKE    CITY   V.    HOLLISTER.  171 

The  answer  also  alleges  that  the  plaintiff,  from  March  2,  1867,  to 
Aug.  26,  1868,  was  distilling  and  producing  spirits,  and  receiving  and 
appropriating  the  benefit  arising  therefrom. 

The  answer  further  alleges  that  the  plaintiff  regularly  reported  and 
paid  to  the  collector  the  gallon  tax  due  upon  a  part  of  the  spirits  dis- 
tilled by  the  plaintiff,  but  that  the  plaintiff  neglected  to  report  all  of 
the  spirits  it  actually'  distilled,  and  that  the  tax  now  in  question  was 
assessed  upon  the  spirits  distilled  in  excess  of  the  amount  reported  by 
the  plaintiff. 

A  demurrer  to  the  answer  was  overruled,  and,  the  plaintiff  refusing 
to  plead  further,  judgment  was  rendered  for  the  defendant. 

Franklin  S.  -Richards,  {Benjamin  Sheeks,  and  J.  L.  Baidins,  with 
him),  for  plaintiff. 

Solicitor  General,  for  defendants. 

Miller,  J.  [After  stating  the  case.]  It  will  be  perceived  that  this 
demurrer  admitted  that  the  plaintiff.  The  Citj'  of  Salt  Lake,  had  been 
for  a  period  of  about  eighteen  months  engaged  in  the  business  of  dis- 
tilling and  producing  spirits  and  selling  the  same,  and  placing  the  pro- 
ceeds of  the  sale  in  its  treasury.  That  during  this  time  the  plaintiff 
made  regular  reports  as  to  the  quantity  produced  and  paid  the  tax  on 
the  amounts  so  reported.  But  that  while  it  thus  operated  said  distil- 
lerv,  it  failed  and  neglected  to  report  all  the  spirits  which  it  produced, 
and  the  tax  assessed  and  collected,  and  which  the  present  suit  is 
brought  to  recover  back,  was  for  the  spirits  of  which  no  report  was 
made. 

The  Commissioner  of  Internal  Revenue  having  assessed  plaintiff  for 
these  distilled  spirits  and  placed  the  assessment  in  the  hands  of  defend- 
ant, he,  as  a  means  of  collecting  the  tax,  did  threaten  to  seize  and  sell 
property  of  plaintiff,  whereupon  plaintiff  paid  the  sura  mentioned. 

It  would  seem  that  this  unqualified  admission  that  the  citj'  was 
actuall}-  engaged  in  the  business  of  distilling  spirits  liable  to  taxation, 
and  replenishing  her  treasury*  with  the  profits  arising  from  the  opera- 
tion, ought  to  be  a  justification  of  the  otHcer  who  collected  the  tax  due 
for  the  spirits  so  distilled.  And  this  argument  is  all  the  stronger, 
since  the  city  acknowledged  its  liability  as  a  distiller  by  paying  volun- 
tarily' the  tax  due  on  the  larger  part  of  the  spirits  produced. 

But  while  the  city  does  not  deny  the  actual  fact  of  distillation,  and 
of  fraudulent  returns  b}'  it,  it  denies  the  whole  affair  by  argument.  It 
says,  that,  though  it  is  very  true  the  city  did  distil  spirits,  did  sell  them, 
and  did  receive  the  mone}'  into  its  treasmy,  it  cannot  be  held  liable  for 
this  because  it  had  no  legal  power  to  do  so.  Its  want  of  corporate 
authorit}'  to  engage  in  distilling  is  to  be  received  as  conclusive  evi- 
dence that  it  did  not  do  so,  while  by  the  pleading  it  is  admitted  tiiat  it 
did.  Because  there  was  no  statute  which  authorized  it  as  a  citj'  of 
Utah  to  distil  spirits,  it  could  engage  in  this  profitable  business  to  an}"- 
extent,  without  paying  the  taxes  which  the  laws  of  the  United  States 
require  of  ever}'  one  else  who  did  the  same  thing. 


SALT   LAKE   CITY   V.   HOLLISTER. 

If  the  Tei'ritoiy  of  Utab  had  added  to  its  other  corporate  power* 
that  of  making  and  selling  distilled  spirits,  then  the  city  would  be 
liable  to  the  tax,  but,  because  it  had  no  such  power  by  law,  it  could 
do  it  without  any  liability  for  the  tax  to  the  United  States  or  to  any 
one  else. 

It  would  be  a  fine  thing,  if  this  argument  is  good,  for  all  distillers  to 
organize  into  milling  corporations  to  make  flour,  and  proceed  to  the 
more  profitable  business  of  distilling  spirits,  which  would  be  unauthor- 
ized by  liieir  charters  or  articles  of  incorporation  ;  for  they  would  thus 
escape  taxation  and  ruin  all  competitors. 

It  is  said  that  the  acts  done  are  not  the  acts  of  the  city,  but  of  its 
officers  or  agents  who  undertook  to  do  them  in  its  name.  This  would 
be  a  pleasant  farce  to  be  enacted  by  irresponsible  parties,  who  give  no 
bond,  who  liave  no  property  to  respond  to  civil  or  criminal  suits,  who 
make  no  profit  out  of  it,  while  the  city  grows  rich  in  the  performance. 
It  is  to  be  taken  as  a  fair  inference  on  this  demurrer  that  all  that  the 
cit}'  might  have  done  was  done  in  establishing  this  business.  The  offi- 
cers who,  it  is  said,  did  this  thing,  must  be  supposed  to  have  been 
properly  appointed  or  elected.  Resolutions  or  ordinances  of  the  govern- 
ing body  of  the  city  directing  the  establishment  of  the  distillery  and 
furnishing  mone}'  to  buy  the  plant,  must  be  supposed  to  have  been 
passed  in  the  ustial  mode.  Everything  must  have  been  done  under  the 
same  rules  and  by  the  same  men  as  if  it  were  a  hospital  or  a  town  hall. 
If  the  demurrer  had  not  admitted  this,  it  could  no  doubt  have  been 
proved  on  an  issue  denying  it. 

But  the  argument  is  unsound  that  whatever  is  done  by  a  corporation 
in  excess  of  the  corporate  powers,  as  defined  by  its  charter,  is  as  though 
it  was  not  done  at  all.  A  railroad  company  authorized  to  acquire  a 
right  of  way  by  such  exercise  of  the  right  of  eminent  domain  as  the  law 
prescribes,  which  undertakes  to  and  does  seize  upon  and  invade,  by  its 
officers  and  servants,  the  land  of  a  citizen,  makes  no  compensation, 
and  takes  no  steps  for  the  appropriation  of  it,  is  a  naked  trespasser, 
and  can  be  made  responsible  for  the  tort.  It  had  no  authority  to  take 
the  man's  land  or  to  invade  his  premises.  But  if  the  governing  board 
had  directed  the  act,  the  corporation  could  be  sued  for  the  tort,  in  an 
action  of  ejectment,  or  in  trespass,  or  on  an  implied  assumpsit  for  the 
value  of  the  land.  A  plea  of  ultra  vires,  in  this  case,  would  be  no 
defence. 

Tlic  truth  is,  that,  with  the  great  increase  in  corporations  in  very 
recent  times,  and  in  their  extension  to  nearly  all  the  business  trans- 
actions of  life,  it  has  been  found  necessary  to  hold  them  responsible 
for  acts  not  strictly  within  their  corporate  powers,  but  done  in  their 
corporate  name,  and  by  corporation  officers  who  were  competent  to 
exercise  all  the  corporate  powers.  Wlien  such  acts  are  not  founded 
on  contract,  but  are  arbitrary  exercises  of  power  in  the  nature  of  torts, 
or  are  quasi-criminal,  the  corporation  ma^'  be  held  to  a  pecuniary  re- 
Bponsibilit^'  for  them  to  the  party  injured. 


SALT   LAKE    CITY    V.   HOLLISTER.  173 

This  doctrine  was  announced  by  this  court  nearly  thirty  years  ago  in 
a  carefully  prepared  opinion  by  Mr.  Justice  Campbell  in  the  case  of 
Philadelphia,  Wilmington  and  Baltimore  Mailroad  Co.  v.  Quigley^ 
21  How.  202. 

[The  learned  Judge  then  stated  the  last  mentioned  case ;  and  also 
referred  to  Reed  v.  Home  Saving^i  Bank^  130  Mass.  443,  445,  and 
Copley  V.  Grover  and  Baker  ISevnng  Machine  Co.,  2  Woods,  494,  in 
which  the  defendant  corporations  were  held  liable  to  actions  for  mali- 
cious prosecution.] 

It  is  said  that  Salt  Lake  City,  being  a  municipal  corporation,  is  not 
liable  for  tortious  actions  of  its  officers. 

While  it  may  be  true  that  the  rule  we  have  been  discussing  may  re- 
quire a  more  careful  scrutiny  in  its  application  to  this  class  of  corpo- 
rations than  to  corporations  for  pecuniary  profit,  we  do  not  agree  that 
the}'  are  wholl}'  exempt  from  liability  for  wrongful  acts  done,  with  all 
the  evidences  of  their  being  acts  of  the  corporation,  to  the  injur}-  of 
others,  or  in  evasion  of  legal  obligations  to  the  State  or  the  public.  A 
municipal  corporation  cannot,  an}'  more  than  any  other  corporation  or 
private  person,  escape  the  taxes  due  on  its  property,  whether  acquired 
legally  or  illegally,  and  it  cannot  make  its  want  of  legal  authority  to 
engage  in  a  particular  transaction  or  business  a  shelter  from  the  taxation 
imposed  by  the  Government  on  such  business  or  transaction  by  whom- 
soever conducted.  See  McCready  v.  Gxiardians  of  the  Poor  of  Phila- 
dephia,  9  S.  &  R.  94. 

It  remains  to  be  observed,  that  the  question  of  the  liability  of  corpo- 
rations on  contracts  which  the  law  does  not  authorize  them  to  make, 
and  which  are  wholly  beyond  the  scope  of  their  jDOwers,  is  governed  by 
a  different  principle.  Here  the  party  dealing  with  the  corporation  is 
under  no  obligation  to  enter  into  the  contract.  No  force,  or  restraint, 
or  fraud  is  practised  on  him.  The  powers  of  these  corporations  are 
matters  of  public  law  open  to  his  examination,  and  he  may  and  must 
judge  for  himself  as  to  the  power  of  the  corporation  to  bind  itself  by 
the  proposed  agreement.  It  is  to  this  class  of  cases  that  most  of  the 
authorities  cited  by  appellants  belong  —  cases  where  cor[)orations  have 
been  sued  on  contracts  which  they  have  successfully  resisted  because 
they  were  ultra  vires. 

But,  even  in  this  class  of  cases,  the  courts  have  gone  a  long  way  to 
enable  parties  who  had  parted  with  property  or  money  on  the  faith  of 
such  contracts,  to  obtain  justice  by  recovery  of  the  property  or  the 
money  specifically,  or  as  money  had  and  received  to  plaintiff's  use. 
Thomccs  V.  Railroad  Co.,  101  U.  S.  71  ;  Louisiana  v.  Wood,  102 
U.  S.  294  ;   Chapman  v.  Douglass  County,  107  U.  S.  348,  355. 

The  judgment  of  the  Supreme  Court  of  Utah  Territory  is 

Affirmed 


174  KETCHUM   V.   CITY   OF   BUFFALO. 


CHAPTEE   IV. 

IMPLIED  POWER  — TO   CONTRACT  ON  CREDIT  — TO  BORROW 
MONEY  — TO   ISSUE   NEGOTIABLE   INSTRUMENTS. 


KETCHUM   V.    CITY   OF  BUFFALO. 

1856.     14  New  York  (4  Kernan),  356.1 

Suit  by  tax-payers  of  the  city  of  Buffalo,  against  the  city  and  one 
Austin.  The  city  purchased  land  of  Austin  for  market  grounds  at 
the  price  of  $35,000,  and  gave  Austin  its  bond  for  that  amount,  pay- 
able in  twenty-five  years  with  semi-annual  interest.  The  comptroller 
of  the  city  presented  to  the  common  council  his  estimate  of  expenses 
to  be  levied  by  tax  in  which  was  an  item  of  $3,675,  interest  on  said 
bond  to  Austin.  Plaintiffs  seek  to  have  the  transaction  between 
Austin  and  the  city  declared  void,  and  ask  that  the  city  be  perpet- 
ually enjoined  from  levying  any  tax  for  payment  of  said  bond  or  the 
interest  thereon. 

In  the  Supreme  Court  judgment  was  rendered  dismissing  the  com- 
plaint.    Plaintiffs  appealed. 

H.   W.  Rogers^  for  appellants. 

John  L.   Talcott,  for  respondents. 

Selden,  J.  [After  deciding  that  the  city  had  power,  under  its 
charter,  to  purchase  land  for  the  purpose  of  a  market.] 

But  admitting  that  the  city  had  a  right  to  make  the  purchase,  it 
is  denied  that  it  could  purchase  upon  credit,  and  execute  the  bond 
given  for  the  purchase  money.  The  power  of  corporations  in  general 
to  make  contracts  and  incur  debts  in  the  prosecution  of  their  legiti- 
mate business,  and  to  give  their  promissory  notes  for  such  indebted- 
ness, would  seem  to  be  firmly  established,  not  only  by  universal 
practice,  but  by  repeated  judicial  decision.  {Matt  v.  Jlicks,  1  Cow.,, 
513;  Mossy.  Oakley,  2  Hill,  265;  Kelly  \.  The  Mayor  of  Brooklyn., 

4  Hill.,  263;  Moss  v.   McCullomjh.,  5  Hill,  131;  Attorney- General  \. 
Life  and  Fire  Insurance  Company.!  9  Faige.,  470 ;  McCullough  v.  Moss, 

5  Denio,  567.) 

In  the  last  of  these  cases  the  judgment  was  reversed,  not  on  the 
ground  that  the  corporation  had  not  the  power  to  contract  the  debt, 

1  Statement  abridged.  Only  so  much  of  the  case  is  given  as  relates  to  a  single 
point.  —  Ed. 


KETCHUM    V.    CITY    OF    BUFFALO.  175 

or  to  give  the  promissory  note,  but/  fpr  the  reason  that  the  property 
purchased  was  not  required  for  the  legitimate  purposes  of  the  com- 
pany. Senator  Lott,  by  whom  the  leading  opinion  veas  given,  says: 
"  I  am  satisfied  that  the  note  in  question  was  given  for  purposes  and 
objects  unauthorized  by  its  charter,  and,  therefore,  not  obligatory." 
It  is  true,  the  learned  senator,  in  the  course  of  his  opinion,  seems  to 
intimate  a  doubt  whether  a  corporation  like  that  of  the  Eossie  Lead 
Mining  Company,  instituted  for  specific  business  purposes,  with  a 
limited  capital,  can  virtually  add  to  that  capital  by  the  purchase  of 
a  large  amount  of  property  upon  credit,  especially  where,  as  in  that 
case,  each  stockholder  is  made  individually  liable  for  all  the  debts 
of  the  company. 

However  this  may  be,  sound  reason,  no  less  than  the  authorities  to 
which  I  have  referred,  forbid  that  it  should  be  held  that  a  corpora- 
tion may  not  incur  a  debt  in  the  exercise  of  its  appropriate  powers, 
or  may  not  purchase,  upon  a  credit,  property  which  is  required  for 
purposes  authorized  by  its  charter.  Municipal  corporations,  espe- 
cially, obtain  their  funds,  for  the  most  part,  periodically,  by  means 
of  annual  taxation,  and  it  is  impossible  by  any  degree  of  care  to 
adjust  their  means  to  their  wants  so  accurately  but  that  exigencies  wil? 
arise,  rendering  necessary  a  resort  to  the  credit  of  the  corporation. 

To  deny  to  such  corporations  the  power  to  use  their  credit  in  any" 
case,  would  scarcely  comport  with  the  objects  for  which  they  are 
created.  Under  such  a  rule  they  could  not  procure  materials  for  the 
repair  of  a  bridge,  unless  the  money  had  been  raised  in  advance- 
The  affairs  of  no  municipal  corporation  were  ever  conducted,  I  pre- 
sume, without  incurring  obligations,  for  various  purposes,  in  antici- 
pation of  its  revenues.  It  may  be  said  that  there  is  a  distinction 
between  incurring  debts  for  the  ordinary  and  current  expenses  of  the 
corporation,  to  be  defrayed  by  the  expected  annual  income,  and  debts 
upon  an  extended  credit,  for  objects  of  a  permanent  character,  as, 
for  instance,  that  a  debt  may  be  created  for  the  repair  of  a  bridge  or 
market,  but  not  for  the  erection  of  or  procuring  a  suitable  site  for 
such  market.  I  am  unable  to  discover  any  solid  basis  for  such  a 
distinction,  or  any  definite  line  by  which  it  could  be  marked. 

It  is  easy  to  see  that  it  would  be  extremely  ditticult,  if  not  impos- 
sible, to  manage  the  affairs  of  a  municipal  corporation,  without  the 
power  to  contract  upon  its  credit.  P2very  contract  for  labor,  not  pai(f 
for  in  advance,  is  necessarily  a  contract  upon  credit,  because  the 
labor,  when  once  performed,  cannot  be  recalled.  It  is  otherwise  in 
case  of  the  purchase  of  property  to  be  paid  for  on  delivery,  because, 
unless  payment  is  made,  it  need  not  be  delivered.  Still,  if  it  consist 
of  several  parcels,  as  of  several  loads  of  lumber  or  of  stone,  to  be 
delivered  at  different  times,  and  paid  for  when  all  are  delivered;  this 
is  a  contract  upon  credit  for  all  except  the  last  load.  Were  a  corpo- 
ration authorized  in  general  terms  to  build  a  bridge,  without  specifi- 
cation of  manner  or  means,  it  would  scarcely  be  doubted  that  it  might 


n 


176  KETCHUM  V.   CITY   OF   BUFFALO. 

contract  with  some  person  to  furnish  the  materials  and  erect  the 
bridge  at  a  specific  price,  to  be  paid  upon  the  completion  of  the  job, 
and  yet  this  would  be  to  build  the  bridge  entirely  upon  the  credit  of 
the  corporation. 

But  it  is  useless  to  multiply  arguments  upon  this  point.  The 
power  of  a  corporation  to  contract  upon  its  credit  cannot  reasonably 
be  denied ;  and  if  it  may  do  so  at  all,  there  is,  I  think,  no  rule  of  law 
which  limits  the  length  of  such  credit.  If  a  corporation  may  make 
an  executory  contract  for  property  or  services,  it  must  of  necessity 
have  power  to  agree  upon  the  mode  and  terms  of  payment;  and  to 
say  that  it  cannot  also  agree  as  to  the  time  of  payment,  is  to  make  a 
distinction  which  rests  upon  no  sound  principle,  and  is  not  warranted 
by  any  authority. 

If,  then,  the  city  of  Buffalo  had  power,  under  its  charter,  to  pur- 
chase ground  for  a  market,  it  had  authority,  so  far  as  the  charter  is 
concerned,  to  do  so  upon  a  credit  to  which  there  was  no  limit  but  its 
own  discretion,  and  the  right  to  give  the  single  bill  in  question  would 
follow  as  a  necessary  consequence.  Power  to  contract  the  debt 
must  carry  with  it  power  to  give  a  suitable  acknowledgment  of  the 
indebtedness,  in  the  form  either  of  a  promissory  note  or  a  single  bill. 
I  can  conceive  no  well  grounded  rule  which  would  concede  one  of 
these  powers  and  deny  the  other,  and  no  such  distinction  is  warranted 
by  the  cases. 

It  may  be  objected  that  the  reasoning  here  adopted  tends  to  estab- 
lish the  right  of  a  corporation  to  contract  a  debt  for  any  authorized 
purpose,  by  borrowing  the  money  necessary  to  accomplish  it;  a  right 
which,  from  the  numerous  legislative  acts  on  the  subject,  it  would 
seem  corporations  have  not  generally  been  supposed  to  possess.  It 
is  true  the  power  to  contract  to  pay  A.  $10,000  at  the  end  of  a  year 
for  doing  certain  work,  and  the  power  to  borrow  $10,000  of  B.,  upon 
a  credit  of  a  year,  for  the  purpose  of  paying  A.  for  doing  the  work, 
might  seem,  at  first  view,  to  be  substantially  identical.  The  amount 
IS  the  same,  and  the  time  of  payment  the  same ;  the  creditor  only  is 
different. 

A  little  examination,  however,  will  show  that  there  is  a  very 
material  difference  between  the  two.  If  the  power  of  the  corpora- 
tion to  use  its  credit  is  limited  to  contracting  directly  for  the 
accomplishment  of  the  object  authorized  by  law,  then  the  avails  or 
consideration  of  the  debt  created  cannot  be  diverted  to  any  illegiti- 
mate purpose.  The  contract  not  only  creates  the  fund,  but  secures 
its  just  appropriation.  On  the  contrary,  if  the  money  may  be  bor- 
rowed, the  corporation  will  be  liable  to  repay  it,  although  not  a  cent 
may  ever  be  applied  to  the  object  for  which  it  was  avowedly  obtained. 
It  may  be  borrowed  to  build  a  market  and  appropriated  to  build  a 
theatre,  and  yet  the  corporation  would  be  responsible  for  the  debt. 
The  lender  is  in  no  way  accountable  for  the  use  made  of  the  money. 
It  is  plain,  therefore,  that  if  the  policy  of  limiting  the  powers  and 


MILLS   V.   GLEASON.  177 

expenditures  of  corporations  to  the  objects  contemplated  by  their 
charters  is  to  be  carried  out,  their  right  to  iucur  debts  for  those 
objects  must  be  strictly  confined  to  contracts  which  tend  to  their 
direct  accomplishment.  If  they  may  procure  the  requisite  funds 
by  the  indirect  method  of  borrowing,  they  may  resort  to  any  other 
indirect  mode  of  obtaining  them,  such  as  establishing  some  profitable 
branch  of  trade,  entering  into  commercial  enterprises,  &c.,  the 
avowed  object  being  to  obtain  the  means  necessary  to  accomplish 
some  authorized  purpose.  No  one  can  fail  to  see  that  to  concede  to 
corporations  the  power  to  borrow  money  for  any  purpose,  would  be 
entirely  subversive  of  the  principle  which  would  limit  their  opera- 
tions to  legitimate  objects.  Hence  the  distinction  between  such  a 
power,  and  that  of  stipulating  for  a  credit  in  a  contract  made  for  the 
direct  advancement  of  some  authorized  corporate  object.  It  is  true 
that  the  act  to  restrict  and  regulate  the  power  of  municipal  corpora- 
tions to  borrow  money,  contract  debts,  and  loan  their  credit,  passed  in 
1853  (Laws  of  1853,  1135),  would  seem  to  proceed  upon  the  assump- 
tion that  such  corporations,  independently  of  legislative  restrictions, 
have  the  power  to  borrow  money.  This  important  question,  however, 
is  yet  to  be  judicially  settled,  but  as  it  is  not  involved  in  this  case, 
I  will  not  dwell  longer  upon  it. 

[The  concurring  opinion  of  Wright,  J.,  is  omitted.] 

Judgment  affirmed. 


MILLS   V.   GLEASON. 

I860.     11    Wisconsin,  Aid ^ 


Action  to  restrain  Gleason,  treasurer  of  the  county  of  Dane,  from 
selling  the  lands  of  the  plaintiff  lying  in  the  city  of  Madison,  for 
the  taxes  assessed  in  the  year  1857.     Said  tax  was  levied,  in  part,  ^'^:^!r^  ^ 


to   raise   a  sum  of   $8,000.00,  to  be  paid   as  interest  on  a  loan  ofo^-syvj.  \ 
been  issued.     These  bonds  had  been  negotiated  at  a  discount.     The  _         X^*^ 


$100,000.00  previously  obtained  by  the  city,  and  for  which  bonds  had' 


money  thus  received  had  been  paid  into  the  city  treasurj',  and  much  T^*"-'^*-''^ 
of  it  had  been  used  in  the  erection  of  city  buildings  and  for  general  ^'>^~^^^^3"'»-«J 
city  purposes.  The  plaintiff  claimed  that  the  city  had  no  power  to"^'^^'^-^^'"''""^^^-*^ 
effect  the  loan  or  to  levy  a  tax  to  pay  interest  upon  it.  »^  ^^-^Laa. 

The  County  Court  gave  judgment  for  the  plaintiff,  and  the  defend-  ^^  ' 
ant  appealed.  tt-^^r<^~*'^ 

S.   U.  Pinney^  for  appellant.  *--<»    v-6l>w~>. 

Abbott  &  Clark^  for  respondent.  ^>-Cr^-v.,^__> 

Paine,  J.  .   .  .  But  it  is  claimed  that  the  city  had  no  power  to  make  ^^^"^    ^aj 

'  Statement  ahridged.     Arguments  omitted.     Only  so  much  of  the  opinion  is  givea  ^^^^^"^"""^ 
ns  relates  to  a  single  point  —  Ed.  k  _  »>-^  C-^I^yj, 


tiv.,,^ \     -^     c\       _v.-Vk 


178  MILLS    l\    GLEASON. 

this  loan,  or  issue  its  bonds  therefor.  There  is  no  special  act  and  no 
provision  in  its  charter  expressly  authorizing  it,  and  it  was  said  that 
without  this,  the  power  to  borrow  money  did  not  exist,  and  could  not  be 
claimed  as  incidental  to  the  execution  of  the  general  powers  granted 
by  the  charter.  The  charter  does  confer  the  power  to  purchase  fire 
apparatus,  cemetery  grounds,  etc.,  to  establish  markets,  and  to  do 
many  other  things,  for  the  execution  of  which,  money  would  be  neces- 
sary as  a  means.  It  would  seem,  therefore,  that  in  the  absence  of 
any  restriction,  the  power  to  borrow  money  would  pass  as  an  incident 
to  the  execution  of  these  general  powers,  according  to  the  well  settled 
rule  that  corporations  may  resort  to  the  usual  and  convenient  means 
of  executing  the  powers  granted ;  for  certainly  no  means  is  more  usual 
for  the  execution  of  such  objects,  than  that  of  borrowing  money. 
But  an  argument  against  the  right  is  derived  from  the  practice  which 
has  prevailed  to  a  considerable  extent,  of  obtaining  special  acts  of 
the  legislature,  authorizing  the  procurement  of  loans  by  municipal 
corporations,  and  the  issuing  of  bonds  or  other  securities  in  payment. 

We  are  not  aware  to  what  extent,  if  any,  this  practice  has  pre- 
vailed in  this  state,  as  to  loans  for  purposes  clearly  municipal,  and 
authorized  by  the  charter;  but  it  seems  to  have  been  resorted  to 
sometimes,  even  in  such  cases,  in  other  states.  The  argument  drawn 
from  the  assumption  on  the  part  of  the  legislature  of  the  necessity  of 
such  acts,  is  one  always  entitled  to  consideration,  and  sometimes  of 
much  weight,  though  never  conclusive;  and  we  think,  owing  to  the 
peculiar  nature  of  the  subject  matter,  that  in  cases  involving  a  loan 
by  corporations,  it  is  of  less  force  than  in  almost  any  other,  for  cap- 
ital is  of  a  timid  jealous  disposition.  It  delights  in  certainty,  and 
is  alarmed  by  doubts.  It  has  been  held  with  great  strictness,  that 
corporations  can  exercise  no  powers  except  those  granted  by  their 
charter.  When,  therefore,  the  charter  does  not  expressly  give  the 
power  of  borrowing  money,  even  though  it  grants  powers  to  which 
this  might  be  claimed  as  incident,  yet  there  is  room  for  doubt,  a 
chance  for  an  argument,  and  that  being  so,  it  might,  as  a  matter  of 
policy,  facilitate  the  loan  by  removing  all  uncertainty  by  an  express 
act  of  the  legislature.  And  the  fact  that  such  acts  have  been  passed, 
being  then  clearly  necessary,  when  these  corporations  have  been 
authorized  to  issue  bonds  in  aid  of  purposes  outside  of  their  char 
tors,  may  have  had  a  tendency  to  induce  a  resort  to  the  same  practice 
when  the  bonds  were  issued  for  some  purpose  authorized  by  the  char- 
ter, though  in  that  case  such  legislation  may  not  have  been  necessary. 
For  these  reasons  we  think  there  is  nothing  in  this  practice  sufficient 
to  overthrow  the  general  rule,  that  in  the  absence  of  restrictions,  a 
corporation  authorized  to  contract  debts  and  to  execute  undertakings 
requiiing  money,  may  borrow  money  for  those  purposes,  and  issue 
its  bonds  or  other  obligations  therefor. 

This  question  is  alluded  to  in  Ketchum  vs.  the  city  of  Buffalo,  4th 
Kern.,  35G,  and  the  court  held  that  the  fact  that  in  several  other 


MILLS    V.    CxLEASON.  179 

instances,  the  legislature  had  expressly  granted  power  to  corporations 
to  "  purchase  market  lots,"  did  not  justif}'  the  conclusion  that  the 
city  of  Buffalo  could  not  exercise  the  power  as  incidental  to  the 
general  power  of  establishing  a  market.  The  court  neld  that,  under  | 
that  general  power,  it  might  purchase  the  lot  on  credit,  and  issue  its 
bonds  in  payment.  And,  after  carefully  considering  the  suggestions 
made  by  the  learned  judge  who  delivered  the  opinion,  we  fail  to  per- 
ceive any  substantial  distinction,  so  far  as  the  question  of  power  is 
concerned,  between  the  method  there  adopted  and  that  adopted  by  the 
city  of  Madison  in  this  case.  True,  it  is  there  suggested  that  the 
question  whether  the  city  of  Buffalo  could  have  borrowed  the  money 
and  paid  for  the  lot,  and  issued  its  bond  for  the  money,  was  a  different 
question,  though  at  first  view  "  they  might  seem  identical."  But  on 
examining  the  points  of  distinction  stated,  we  think  they  do  not 
affect  the  question  of  power,  but  simply  go  to  show  that  the  one 
method  of  exercising  it  may  afford  less  facility  for  a  misapplication 
of  the  funds  than  the  other.  Thus  it  was  said  that  if  the  money  was 
borrowed  to  build  a  market,  it  might  be  used  to  build  a  theatre, 
whereas  if  the  contract  were  directly  for  the  market,  and  the  bond 
given  in  payment,  it  would  ensure  the  application  of  the  fund  to  its 
legitimate  object.  This  might  be  a  good  reason  why  the  legislature 
should  restrict  the  corporation  to  the  one  method  of  accomplishing 
the  object;  but  when  the  power  is  granted  without  restriction  as  to 
the  means,  it  does  not,  in  our  opinion,  justify  a  court  in  saying  tha* 
while  the  corporation  has  the  power  of  using  one  means,  it  has  no'' 
that  of  using  another,  though  equally  direct  and  well  adapted  to  the 
accomplishment  of  4-he  object,  provided  the  funds  are  honestly  applied; 
merely  because  it  may  afford  greater  facility  for  a  misapplication. 
They  might  undoubtedly  be  misapplied  in  either  case.  Thus,  what 
should  prevent  the  city  of  Buffalo,  having  purchased  a  lot  for  a 
market,  and  given  its  bonds  for  it,  from  erecting  a  theatre  instead  of 
a  market  on  the  lot,  if  it  was  to  be  assumed  that  it  was  willing  to 
pervert  its  funds  and  its  credit  to  unauthorized  purposes?  Or,  hav- 
ing purchased  materials  for  a  market,  it  might  out  of  them  erect  a 
theatre.  Or,  having  given  its  bond  for  the  purchase  of  a  lot,  and  the 
erection  of  a  market,  and  then  having  raised  by  taxation  the  money 
to  pay  the  bond,  it  might  use  the  money  to  build  the  theatre,  leaving 
the  bond  unpaid.  This  oppoitunity  of  misapplying  the  funds  must 
exist  under  any  method  of  executing  the  powers  of  a  corporation.  If 
one  affords  greater  facility  for  it  than  another,  the  remedy  is  in 
restrictions  by  the  legislature,  and  the  selections  of  honest  and  cap- 
able agents  by  the  people.  _  But  it  affords  no  ground  for  a  court  to 
say  that  as  a  mere  question  of  power,  the  corporation  may  not  adopt 
the  one  method  as  well  as  the  other;  and  it  being  established  that  a 
corporation  may  purchase  upon  credit  such  things  as  are  necessary 
for  the  execution  of  its  powers,  we  think  it  follows  necessarily  tha^ 
It  may  borrow  the  money  to  pay  for  them,  as  that  is  one  mode  ot 
purchasing  upon  credit. 


180  MILLS    V.    GLEASON. 

Nor  is  the  power  of  taxation  conferred  by  the  charter  to  be  deemed 
to  exclude  the  power  of  borrowing  money.  The  case  just  referred  to 
/  is  an  authority  against  such  a  proposition.  It  holds  that,  notwith- 
'^standing  the  power  of  taxation,  the  corporation  may  resort  to  its 
['midit,l3oF"oiTyTQi~ its  ordinary  current  expenses,  hnt  tor  ohlectFoT 
"a]£ernianeut  character.  The  case  of  Clark  vs.  School  District,  c5  K.  1. , 
lW,"Ts'~atso~inrpoInfr  It  was  there  held  that  a  school  district  might 
borrow  money  to  pay  debts  contracted  for  the  erection  of  a  school- 
house,  and  give  its  note  therefor,  and  that  its  power  of  taxation  was 
not  to  be  construed  as  forbidding  it  to  borrow  money  for  a  legitimate 
purpose.  Beet's  vs.  Phoenix  Glass  Co.,  14  Barb.,  358,  and  Mead  vs. 
Keeler,  24  Barb.,  29,  are  also  direct  authorities  in  favor  of  the  power 
of  a  corporation  to  borrow  money,  as  incidental  to  the  execution  of 
its  other  powers.  It  was  said  on  the  argument,  that  it  did  not  appear 
that  the  moneys  received  were  all  applied  to  municipal  purposes.  It 
does  not  appear  how  they  were  all  applied,  but  we  apprehend  it  would 
not  be  incumbent  on  the  lender  to  show  that  they  were  properly 
applied.  If  the  city  had  power  to  borrow  money  for  legitimate  pur- 
poses, a  misapplication  of  the  funds  after  they  were  obtained  would 
not  invalidate  the  contract.  In  Bigeloiv  vs.  the  City  nf  Perth  Amhoij, 
Dutch.,  297,  the  city  had  purchased  a  quantity  of  flag-stone,  for  pav- 
ing streets,  and  it  was  claimed  that  the  charter  had  not  been  complied 
with,  in  respect  to  the  proceedings  preliminary  to  the  paving  by  the 
city.  But  the  court  held  that  to  be  a  question  between  the  city  and 
the  lot  owners,  and  they  add:  "  But  as  between  the  creditors  of  the 
city  and  the  corporation,  the  only  question  is  whether  the  city  agents, 
the  mayor  and  council,  had  the  power  of  purchasing  the  material  in 
question.  How  the  material  was  used,  or  whether  it  was  used  at  all, 
is  to  creditor  a  matter  of  total  indifference."  So  in  a  recent  case  in 
England,  Eastern  Counties  R.  R.  Co.  vs.  HaivJces,  38  E.  L.  &  E.,  8, 
it  was  held  that  where  the  charter  allowed  the  company  to  purchase 
lands  for  extraordinary  purposes,  a  person  contracting  to  sell  them  land 
was  not  bound  to  see  that  it  was  strictly  required  for  such  purposes, 
and  that  if  he  acted  in  good  faith,  without  knowing  of  any  intention 
to  misapply  the  funds  of  the  company,  he  might  enforce  the  contract. 
The  principle  of  that  decision  would  seem  to  warrant  the  proposi- 
tion, that  where  a  corporation  has  power  to  borrow  money,  a  lender, 
acting  in  good  faith,  and  supposing  it  to  be  borrowed  for  legitimate 
purposes,  might  recover,  even  though  the  corporation  intended  to  de^ 
vote  it  to  objects  unauthorized.  And  it  would  certainly  sustain  the 
position,  that  where  it  was  borrowed  for  lawful  objects,  no  subsequent 
misapplication  of  the  funds  could  affect  the  rights  of  the  lender,  about 
which  there  is,  in  fact,  no  room  even  for  the  shadow  of  a  doubt. 

Judgment  reversed.      Cause  remanded  with  direction  that  the  com- 
plaint be  dismissed. 


TOWN   OF   HACKETTSTOWN   V.   SWACKHAMER. 


181 


i 


TOWN   OF  HACKETTSTOWN  v.    SWACKHAMER. 

1874.     37  New  Jersey  Law,  191. 

On  rule  to  show  cause. 

Argued  at  Juue  Term,  1874,  before  Beasley,  Chief  Justice,  and 
Justices  Bedle,  Woodhull  and  Scudder. 

For  the  defendants,  Fitney. 

For  the  plaintiff,   Vanatta. 

The  opinion  of  the  court  was  delivored  by 

Beasley,  Chief  Justice.  The  note,  which  is  the  subject  of  this 
suit,  was  given  bj'  the  treasurer  of  the  town  of  Hackettstown,  in 
the  name  and  behalf  of  the  town,  for  money  borrowed.  This  case, 
therefore,  raises  the  question  whether  a  municipal  corporation,  in  the 
absence  of  an  express  power  for  that  purpose,  can  contract  for  loans 
for  the  supply  of  its  ordinarj'  expenses. 

At  the  present  time  it  seems  to  be  generally  conceded,  that  a  pri- 
vate corporation,  constituted  with  a  view  to  pecuniary  profit,  has,  by 
implication,  when  not  in  this  particular  specially  restricted,  the  power 
in  question.     The  law  was  so  held  in  this  state,  in  the  case  of  Lucas  rT*-B— J 
v.  P'ltneij^   3  Dutcher  221,  and  the  same  rule  has  been  repeatedly^  ' 

recognized  in  other  decisions.     And  this  result  is  the  appropriate 
product  of  the  principle  that  corporate  powers,  which  are  the  neces- 
sary accompaniments  of  powers  conferred,  will  be  implied.     In  these 
instances  the  ability  to  borrow  money  is  so  essential  that  without  it 
the   business    authorized    could    not   be   conducted    with   reasonable 
efficiency,  and,  as  it  cannot  be  supposed  that  it  was  the  legislative  ^^        - 
intent  to  leave  the  company  in  so  imperfect  a  condition,  the  inference         Ca"*"^ 
is  properly  drawn  that  the  power  to  raise  money  in  this  mode  is  "^''^-'^-vx^, 
inherent  in  the  very  constitution  of  such  corporate  bodies.     Such  a "^'Vva^njlX^ 
deduction  is  simply,  in  effect,  a  conclusion  that  the  lawmaker  designed  vxv/n_-vJUjl.  ( 
to  authorize  the  use  of  the  means  fitted  to  accomplish  the  purpose  in  o  tt_^^  ^-*fc 
view.     It  has  been  often  said  that  the  means  which  can  be  thus  raised  <jy^,^_^    <i-^ 
up  by  implication  must  be  necessary  to  the  successful  prosecution  Ni; :s--V-t--_J 
of  the  enterprise,  and  that  the  circumstance  that  the}'  are  convenient  .^^  c«Ar^ 
will  not  legalize  their  introduction.     But  the  necessity  here  spoken 


of  does  not  denote  absolute  indispensableness,  but  that  the  power  in 
question  is  so  essential  that  its  non-existence  would  render  the  privi-  1 
leges  granted  practically  inoperative,  or  incomplete.  It  is,  conse-  | 
quentl}',  obvious  that  a  presumption,  resting  on  such  a  basis  as  this, 
must  spring  up  in  favor  of  almost  the  entire  mass  of  commercial  and 
manufacturing  corporations,  for  without  the  franchise  to  effect  loans, 
the  chartered  business  could  be  but  imperfectly  transacted.  And 
yet,  even  in  such  instances,  the  usual  inference  that  such  an  implied 
power  exists  maybe  repelled  by  the  language  of  the  particular  charter 
or  the  peculiar  circumstances  of  the  case.     In  a  word,  the  rule  of  law    ' 


r 


A 


182  TOWN   OF   HACKETTSTOWN   V.    SWACKHAMER. 

in  question  is  nothing  but  the  discovery,  by  the  courts,  of  the  legls. 
lative  intent,  such  intent  having  been  ascertained  by  a  construction 
of  charters,  as  applied  to  the  subject  matters. 

Taking  this  as  the  ground  of  our  reasoning,  I  am  at  a  loss  to  per- 
ceive how  it  can  be  inferred  that  a  power  to  borrow  money  is  an 
appendage  to  the  usual  franchises  given  to  municipal  corporations. 
Such  a  right  cannot,  in  any  reasonable  sense,  be  said  to  be  necessary 
within  the  meaning  of  that  term  as  already  defined.  Under  ordinary 
circumstances  it  is  not  certainly  indispensable  as  common  experience 
demonstrates.  In  the  great  majority  of  instances  the  municipal 
affairs  are,  with  ease  and  completeness,  transacted  without  it.  I  do 
not  wish  to  be  understood  as  indicating  that  under  certain  special 
conditions  an  opposite  deduction  may  not  be  legitimately  drawn.  It 
is  plain  that  it  is  practicable  to  impose  a  duty  on  a  municipality 
requiring  the  immediate  use  of  large  sums  of  money,  and  in  such  a 
situation  the  inference  may  become  irresistible  that  it  was  intended 
that  funds  were  to  be  provided  by  loans.  My  remarks  are  to  be 
restricted  to  that  class  of  cases  where  charters  are  granted  containing 
nothing  more  than  the  usual  franchises  incident  to  municipal  corpora- 
tions, and  under  such  conditions  it  seems  clear  to  me  that  the  power 
to  borrow  money  is  not  to  be  deduced.  I  have  already  said  that  it 
does  not  appear  to  be  a  necessary  incident  to  the  powers  granted, 
for  such  powers  can  be  readily  and  efficiently  executed  in  its  absence. 
It  would  be  to  fly  in  the  face  of  all  experience  to  claim  that  the 
ordinary  municipal  operations  cannot  be  efficiently  carried  on  except 
with  the  assistance  of  borrowed  capital.  Without  any  help  of  this 
kind,  it  is  well  known  that  our  towns  and  cities  have  long  been,  and 
are  now  being,  improved  and  governed.  For  the  attainment  of  these 
ends  it  has  not  generally  been  found  necessary  to  resort  to  loans  of 
money.  The  supplies  derived  annually  from  taxation  have  been 
found  amply  sufficient  for  these  purposes.  Consequently  I  am  unable 
to  perceive  any  necessity  to  borrow  money,  under  these  conditions, 
from  which  the  gift  of  such  power  to  borrow  is  to  be  implied.  It 
undoubtedly  is  clear  that  if,  as  has  been  asserted,  the  ends  of  the 
municipal  charter  can  be  conveniently  reached,  without  a  resort  to 
the  device  of  raising  moneys  by  loan,  there  is  not  the  least  legal  basis 
for  a  claim  of  the  power  to  obtain  funds  in  that  way.  jGrantedthe 
fact  that  the  charter  can  be  executed  with  reasonable  ease  and  with 
completeness,  the  conclusion  is  inevitable  that  the  power  in  question 


cannot  be  called  into  existence  by  intendment,  and  as  I  claim  tfie" 


jact  to  exist  I  must,  of  necessity,  reject  the  right  of  implication 


io  question. 


Nor  is  there  anything  in  the  language  or  in  the  frame  of  the  present 
charter  which  would  seem  to  favor  the  idea  of  the  existence  of  an 
authority  in  the  corporation  to  borrow  money.  It  is  in  the  ordinary 
fashion,  giving  the  usual  prerogatives  of  administration,  improve- 
ment and  police,   and  then  follows  the  important  clause,   declaring 


TOWN   OF  HACKETTSTOWN   V.   SWACKHAMEE.  183 

•*  that  it  shall  be  lawful  for  the  common  council,  from  year  to  year, 
to  vote  and  raise  by  tax  such  sum  or  sums  of  money  as  they  shall 
deem  necessary  and  proper."     Of  course  there  can  be  no  doubt  with 
respect  to  the  purposes  to  which  the  money  thus  authorized  to  be 
levied  is  to  be  applied.     It  is  the  means  whereby  the  duties  of  local 
government  are  to  be  discharged.     There  is  no  limitation  on  the 
amount  that  may  be  raised.     But  there  is  a  limitation  on  the  method 
of  raising  it.     It  is  not  a  general  authority  to  raise  money  in  any      . 
mode  which  the  common  council  shall  devise.     The  restriction  is,  it     / 
shall  be  raised  "  by  tax."     How  can  it  be  claimed,  then,  that  it  can     / 
be  raised  by  loan?     The  power  to  borrow  money  is,  in  a  certain 
sense,  a  larger  power  than  that  of  raising  money  by  taxation.     There 
is,  in  the  nature  of  the  thing,  an  immediate  check  to  excessive  tax- 
ation; that  is,  the  resistance  of  the  parties  taxed.     There  is  none 
such  in  the  power  to  borrow,  for  the  immediate  burthen  of  a  loan  is 
but  slightly  felt.     Indeed,  it  is  difficult  to  imagine  any  greater  power 
that  one  person  can  confer  upon  another  than  an  unlimited  authority 
to  borrow  money.     It  is  a  common  thing  for  an  agent  to  have  the 
right  to  contract  debts  in  the  name  of  his  principal ;  but  a  very  un- 
common thing  for  such  agent  to  be  authorized  to  borrow  money  ad 
libitum.     A  more  dangerous  confidence  could  scarcely  be  given.     If 
the  municipal  authorities  under  one  of  these  charters,  which  in  these 
days  are  so  common,  have  this  power  to  borrow,  which  is  claimed  for 
them,   such  power  is  practically  unlimited.     I  see  no  limit  to  it, 
except  the  good  sense,  virtue  and  intelligence  of  the  depositaries  of 
it.     It  may  be  resorted  to  on  all  occasions  in  the  management  of  the 
afifairs  of  the  city.     The  use  of  such  a  power  might,  at  the  will  of  the 
officials,  be  co-extensive  with  the  corporate  operations.     All  the  usual 
enterprises  and  improvements  could  be  undertaken  on  a  basis  of  a 
credit,   and  annual  taxation,   instead  of  being  made  the  basis  and 
measure  of  annual  expenditure,   could  readily  be  converted  into  a  <;^ 
subordinate  auxiliary  to  an  extended  system  of  loans.     It  is  plain  i: 
that  such  a  power  would  be  full  of  peril  to  the  owners  of~cIty  prop- ' 
erty,  and  the  widest  door  would  be  thus  thrown  open  to  PTtmA-nomnnp,  /  vA«;^  v>^^^v^~>« 
recklessness  and   fraud.     In   my  judgment,   if   such  a  system  wasj  ^'^^  -&>N.»-jt. 
judicially  recognized,  and  such  recognition  was  promulgated, ^almost!  7"^"*"^*  ^"^ 
every  city  in  the  state  would  be  soon  overwhelmed  with  indebtedness.  \  ^^~^-A  "t: 
Nor  do  I  for  a  moment  believe  that  a  municipality  could  obtain  f rom  J /^^^""^■^~-*»^ 
any  legislature  an  unrestricted  power  to  borrow  money.     It  is  prob-"^*^    "^^-"^ 
able  that  such  a  boon  has  never  been  solicited  by  any  public  corpora-      '^^O7v_ovy 
tion.     Our  statutory  history  evinces  clearly  that  the  power  in  question  ''%^*>^r^r^^,^_SL  . 
has   been   granted  with   a  stinted   hand   and  circumscribed   by  well  '  o 
defined  limitations.     jNIy  judgment  is  entirely  averse  to  raising  up 
this  dangerous  power  by  implication.     If  the  rules  of  law  compelled 
Jhe  court  to  make  such  implication,  it  seems  to  me  such  result  would 
be  largely  injurious  to  the  well-being  of  the  state;  and  it  is,  there- 
fore, a  satisfaction  to  know  such  rules  of  law  do  not  exist.     The 


184 


TOWN   OF   HACKETTSTOWN   V.   SWACKHAMER. 


authority  to  tax  affords  a  sufficient  source  of  funds  requisite  for  all 
municipal  purposes,  and  the  consequence  is  there  can  be  no  inference 
of  the  existence  of  the  superfluous  power  to  borrow  money  for  the 
same  end. 

An  examination  of  the  books  will  show  that  this  question  has  not 
as  yet  received  much  judicial  consideration.  The  courts  of  Wiscon- 
sin and  Ohio  have  had  this  matter  before  them,  and  have  arrived  at  a 
result  the  opposite  of  that  which  has  just  been  stated.  I  have  care- 
fully weighed  the  arguments  of  these  learned  tribunals,  but  they  have 
failed  to  convince  my  understanding.  The  cases  referred  to  are 
those  of  Mills  V.  Gleason,  11  Wis.  470;  and  Bank  v.  Chillicothe, 
7  Ohio,  ^^ar^  //,  31.  As  a  counterpoise  to  these  views  stands  the 
weighty  opinion  of  Judge  Dillon,  in  his  treatise  on  Municipal  Cor- 
porations, Vol.  I,  §  81.  Much  emphasis  is  added  to  this  expression 
of  opinion,  from  the  fact  that  this  author  had  before  him,  at  the  time 
he  wrote,  the  opposing  cases  just  cited.  In  this  state  of  the  authority, 
it  cannot  be  claimed  that  the  principle  is  so  settled  that  the  judgment 
of  this  court  cannot  be  freely  exercised  with  respect  to  this  important 
subject.  My  conclusion  is  that  already  expressed,  that  a  right  to 
"borrow  money  is  not  to  be  inferred  from  any  of  the  ordinary  powers 
,l5onferred  lu  ine  charters  of  munlcl"pgtx'uipuratioiiij,Jind  tna'l,  under 
ni'dinary  circumstances,  such  a  power  can  proceed  only  from  an 
express  grant  io  that  effect. 

[j'  Nor  do  I  think  tnat  it  aacis  anything  to  the  right,  to  enforce  the 
note  in  this  case,  that  the  money  which  it  represents,  and  which  was 
borrowed,  has  been  expended  in  behalf  of  the  corporation  for  legiti- 
mate purposes.  The  argument  on  this  head  was  that,  as  the  money 
had  gone  for  the  benefit  of  the  corporation,  the  law,  upon  general 
principles,  would  compel  its  re-payment.  If  this  is  so,  then  the 
rejection  of  an  implied  power  to  borrow  is  of  little  avail.  The  doc- 
trine, although  repudiated  in  the  abstract,  would  be  ratified  in  the 
concrete.  If  this  contention  is  tenable,  it  is  impossible  to  close  the 
eye  to  the  fact  that  the  loan,  although  held  illegal  and  void  in  its 
inception,  would  thus,  by  a  subsequent  act,  be  rendered  valid  and 
enforceable.  To  style  it,  as  was  done  in  the  argument,  money  had 
and  received,  would  not  change  the  real  nature  of  the  transaction. 
To  permit  a  recovery  of  it  in  this  secondary  form  would  be,  virtually 
and  in  truth,  to  effectuate  a  loan,  and  all  the  evils  attendant  on  the 
power  to  borrow  money  in  an  unrestricted  form,  would  supervene. 
And  it  is  to  be  noted,  that  it  is  altogether  a  fallacy  to  argue  that  the 
law  will  raise  an  implied  promise  to  rei)ay  the  money  after  it  has 
been  used.  The  impediment  to  such  a  theory  is,  that  the  corpora- 
tion has  not  the  competency  to  make  the  promise  thus  sought  to  be 
implied.  An  express  promise,  to  the  effect  contended  for,  would  be 
illegal,  and,  therefore,  clearly,  the  law  will  not  create  one  by  implica- 
tion. It  is  not  the  case  of  a  principal  using  money  borrowed  by  his 
agent  without  authority,   but  it  is  the  case  of  a  principal  who  is 


TOWN    OF   HACKETTSTOWN   V.    SWACKHAMEK.  185 

incapacitated  by  law  from  borrowing,  and  who,  tlierefore,  cannot 
legalize  the  act,  either  directly  or  by  circuity.  Perhaps  a  parallel 
instance  would  be  presented  in  case  of  a  loan  to  a  married  woman  at 
common  law,  the  money  being  used  by  her.  Her  promise  to  repay 
the  loan  would  be  void ;  and,  from  the  fact  of  her  having  made  use 
of  the  money,  no  implied  promise  in  law  could  be  deduced. 

The  lender  of  such  money  may,  perhaps,  have  his  redress  against 
the  officer  of  the  corporation,  who  unjustifiably  held  himself  out  as 
possessed  of  the  right  to  take  the  loan  in  the  name  and  on  the  respon- 
sibility of  the  city,  or  by  a  recourse  to  equity,  asking  to  be  subro- 
gated to  the  rights  of  those  creditors  who  have  received  his  money, 
instead  of  having  their  debts  paid  by  the  corporation.  But  even  if 
the  holder  of  this  note  should  be  remediless,  the  result  is  the  same. 
No  one  can  justly  reproach  the  law  for  not  providing  him  a  remedy 
for  his  own  folly  or  indiscretion.  Such  folly  or  indiscretion  may 
have  enabled  the  city  officials  to  create  a  burthen,  or  may  have 
stimulated  them  to  acts  of  extravagance  which  would  not  have 
been  otherwise  created  or  done.  It  is  but  just  that  the  individual 
who  has  occasioned  the  evil  should  bear  the  loss.  But  whether  the 
owner  of  this  paper  be  remediless  or  not,  it  is  enough  for  the  present 
purpose  to  say  that  there  is  no  apparent  ground  on  which  this  money, 
thus  illegally  loaned,  can  be  recovered  by  an  action  at  law. 

The  establishment  of  these  general  principles  necessarily  leads  to 
a  decision  against  the  plaintiff  in  this  case.  But  there  are  narrower 
grounds  which  would  conduct  to  the  same  result. 

On  the  admission  that  the  common  council,  which  is  the  ruling 
power  of  the  corporation,  had  authority  to  contract  the  debt  in  ques- 
tion, it  was  not  shown  at  the  trial,  with  anything  like  legal  certainty, 
that  this  loan  was  either  authorized  or  ratified  by  such  body.  The 
treasurer  obtained  the  money  and  gave  the  note.  The  proof  of  his 
authorization  consisted  in  his  statement  that  he  had  a  "  verbal  author- 
ity to  borrow  money  needed  for  the  purposes  of  the  town.'"  This  is 
entirely  too  loose.  Such  a  power  could  not  be  transferred,  except  by 
a  formal  resolution,  passed  at  a  legal  meeting  of  the  council,  or  by 
an  ordinance  duly  enacted.  Nor  was  it  shown  that  the  fact  of  the 
money's  having  been  expended  for  town  purposes,  was  ever  known 
to  the  council.  The  result  is  that,  at  the  trial,  there  was  proof  neither 
of  the  authorization  of  the  treasurer,  or  of  ratification  of  his  act. 
One  of  the  essentials  of  the  plaintiff's  case  was  wanting  to  it.  On 
this  ground  alone  there  must  be  a  new  trial. 

The  further  question  was  discussed  at  the  bar,  whether  a  municipal 
corporation,  lacking  a  special  authority  to  that  end,  can  execute  a 
promissory  note.  I  have  examined  the  subject,  but  the  views  already 
expressed  render  it  unnecessary  to  pronounce  any  final  conclusion  with 
respect  to  it,  for  the  purposes  of  the  present  case.  I  may  say,  how- 
ever, that  my  present  view  is,  that  a  corporate  body  of  this  character, 
bas  the  general  and  inherent  right  to  execute  a  note  as  a  voucher  of 


186 


GREAT   FALLS  BANK   V.   TOWN   OF   FARMINGTON. 


indebtedness,  but  that  such  note  will  not  have  the  effect  when  in  the 
hands  of  a  bona  fide  holder  before  maturity,  of  cutting  off  the  equities 
existing  between  the  maker  and  payee.  In  this  respect  I  fully  con- 
cur in  the  learned  opinion  of  Mr.  Justice  Bradley,  recently  read  in 
the  Supreme  Court  of  the  United  States,  in  the  case  of  The  Mayor  v. 
Baj/,  19  Wall.  468. 

Let  a  venire  de  novo  be  awarded. 


GREAT   FALLS   BANK   v.    TOWN   OF  FARMINGTON. 

I860.     41  New  Hampshire,  32A 

Assumpsit  on  a  promissory  note  of  the  defendants,  signed  by  a 
majority  of  the  selectmen,  by  order  and  in  behalf  of  the  town,  orig- 
inally payable  to  H.  Rollins  &  Co.,  or  order,  in  six  months  from 
date;  and  indorsed  to  plaintiffs.  The  note  was  given  for  liquors 
purchased  by  the  town  liquor  agent  upon  the  credit  of  the  town ;  said 
agent  so  purchasing  under  verbal  authority  from  the  selectmen.  The 
liquors  were  sold  to  the  agent  by  Rollins  &  Co.  in  Massachusetts. 
Rollins  &  Co.  were  not  licensed  to  sell  liquors  in  Massachusetts,  and 
fc  -Vv.fcJr  *'^®  ^^^^  ^^^  ^^  violation  of  the  Massachusetts  statute.  The  plain- 
tiffs purchased  the  note  for  value,  before  maturity,  and  without  any 
notice  or  knowledge  of  the  consideration  for  which  it  had  been  given. 

The  foregoing  facts  appearing  in  evidence,  a  verdict  was  taken  for 
plaintiffs ;  and  the  questions  of  law  were  reserved. 

Wells  &  Eastvian^  for  plaintiffs. 

G.  N.  Eastman,  Christie  &  Kingman,  for  defendants. 

Fowler,  J.  By  the  express  provisions  of  the  act  of  July  14,  1855 
(Laws  of  1855,  ch.  1658),  it  was  made  the  duty  of  every  city,  town 
and  place  in  this  State  to  establish  one  or  more  agencies  "  for  the 
purchase  of  spirituous  and  intoxicating  liquors,  and  for  the  sale 
thereof  within  such  city,  town  or  place,  to  be  used  in  the  arts,  or  for 
medicinal,  mechanical  and  chemical  purposes ;  and  wine  for  the  com- 
memoration of  the  Lord's  Supper;  and  for  no  other  use  or  purpose 
whatever."  The  selectmen  were  liable  to  indictment  for  refusing  to 
appoint  an  agent,  even  where  the  town  had  refused  to  provide  the 
means  to  purchase  the  stock  in  trade  of  the  agency.  State  v.  Wood- 
bury,  35  N.  H.  230. 

The  selectmen  of  Farmington,  or  the  liquor  agent  by  them  appointed, 
might^  therefore,  properly  purchase,  upon  the  credit  of  the  town,  tbe 
iquors  necessary  to  supply  the  agency  which  the  selectmen  were 
required  to  establish.  The  town  was  legally  liable  to  furnisn  tne 
agency  with  such  liquors,  their  credit  might  be  pledged  to  procure 
them,  and  the  selectmen,  as  the  general  prudential  and  financial  agents 

-(Ji^^^^j.        *  Statement  abridged.     Portions  of  opinion  omitted.  —  Ed. 


.^U,.^. 


GREAT   FALLS   BANK   V.    TOWN    OF   FARMINGTON.  187 

of  the  town,  might,  therefore,  rightfully  bind  the  town  by  a  note 
^ivep  for  the  price  of  the  liquors  nRoeflaary  for  that  purpose.  It  was 
within  the  scope  of  their  authority  as  selectmen  to  bind  the  town  by 
a  contract  to  pay  for  liquors  furnished  the  agency  of  the  town  by 
them  established  without  any  express  authority  from  the  town  for 
that  purpose.  Andover  v.  Grafton,  7  N.  H.  298;  Savage  v.  Rix, 
9  N.  H.  265;  Glidden  v.  Unity,  33  N.  H.  571;  Hanover  v.  Weare, 
2  N.  H.  131;  Hanover  v.  Uaton,  3  N.  H.  38;  Ang.  &  Am.  on  Corp. 
212,  and  authorities  cited;  Comp.  Laws,  ch.  36,  sec.  2. 


The  selectmen  of  Farmington  having  had  authority  to  give  the  note 
in  suit,  and  the  plaintiffs  being  innocent  indorsees  and  purchasers 
thereof  for  value  before  its  maturity,  in  the  ordinary  course  of  busi- 
ness, without  notice  or  knowledge  of  any  illegality  in  its  considera- 
tion, upon  general  principles,  this   action  may  well  be  maintained,   i 
notwithstanding  the  consideration  of  the  note  was  the  sale  of  liquors 
in  violation  of  the  statute  of  Massachusetts ;  for  generally  the  ille-  ,. 
gality  of  the  consideration  of  a  negotiable  promissory  note  is  no,'' 
"defence  to  it   in  tae  bands  ot  an   innocent  inaorsee  and  purcbasert 
^f or  val  le..     Doe  v.  Burnham,  31  N.  H.  426,  and  authorities;   Crosby! 
v.  Grant,  36  N.  H.  273.  i 

But  the  defendants  contend  that,  although  the  general  rule  be  as 
we  have  stated  it,  they  stand  upon  a  different  footing,  inasmuch  as 
if  they  may  be  holden  to  pay  this  note  to  the  plaintiffs,  they  are  in 
a  worse  condition  in  relation  to  the  debt  than  they  would  have  been 
if  a  negotiable  note  had  not  been  given  for  it,  and  therefore  the 
selectmen  had  no  authority  to  give  the  note.  The  position  seems  to 
rest  upon  a  remark  of  Parker,  J.,  in  Andover  v.  Grafton,  7  N.  H. 
298,  based  upon  the  authority  of  Slark  v.  The  Highgate  Archway 
Company,  5  Taunt.  792 ;   1  E.  C.  L.  268. 

[After  stating  the  last  named  case.] 

It  is  quite  apparent  that  the  whole  extent  of  the  authority  of  this 
case  goes  only  to  the  point  that  corporations,  like  natural  persons, 
are  bound  by  the  acts  and  contracts  of  their  agents,  only  when  those 
acts  are  done  and  those  conti'acts  are  made  within  the  scope  of  their 
authorit}' ;  and  that  whenever  a  corporation  is  sued  upon  such  a  con- 
tract, whether  it  be  a  negotiable  promissory  note,  or  any  other  instru- 
ment, they  are  at  liberty  to  show  that  the  agents  making  it  had  no 
authority  to  execute  it,  in  whosesoever  hands  it  may  be;  because, 
if  the  agents  had  only  a  restricted  authority,  a  contract  made  by  them 
beyond  its  limits  could  impose  no  obligation  on  the  corporation ;  and 
whoever  takes  a  contract  executed  by  an  agent,  takes  it  subject  to 
the  risk  of  the  authority  of  that  agent  to  execute  it.  This  doctrine 
is  too  familiar  to  need  the  citation  of  authorities.  The  subject  is 
fully  discussed,  and  most  of  the  American  authorities  are  collected, 
in  Ang.  &  Am.  on  Corp.,  2d  ed.,  213,  216,  229,  233,  239-246. 

It  seems  to  us  the  decision  in  Andover  v.  Grafton  can  and  does  go 


188  GREAT   FALLS   BANK   V.   TOWN   OF  FARMINGTON. 

no  farther  than  the  principle  to  which  we  have  adverted.  It  is  true, 
the  learned  Judge  Parker  not  only  says:  ",  An  indorsee  who  should 
take  such  a  note  [one  given  by  the  selectmen  of  a  town  in  behalf  of 
the  corporation],  even  before  due,  would  receive  it  subject  to  a  lia- 
bility to  make  the  same  proof  respecting  the  authority  of  the  select- 
men to  execute  it  in  that  particular  case,  as  would  be  required  of 
the  promisee;"  but  adds,  "and  of  course  must  be  chargeable  with 
notice  of  all  the  facts,  and  the  note  in  his  hands  be  liable  to  the  same 
defence  as  in  the  hands  of  the  original  promisee ;  "  and  then  cites 
Slark  V.  The  Highgate  Archtvay  Company,  as  authority  to  sustain 
his  position. 

It  is  undoubtedly  true,  as  a  general  principle,  that  whatever  is 
notice  enough  to  excite  attention,  and  put  the  party  upon  his  guard, 
and  call  for  inquiry,  is  notice  of  every  thing  to  which  such  inquiry 
would  naturally  have  led.  Where  a  person  has  sufficient  information 
to  lead  him  to  a  fact,  he  shall  be  deemed  conversant  of  it.  Kennedy 
V.  Green,  3  Myl.  &  K.  719,  721,  722;  The  Ploughboy,  1  Gall.  41; 
Hinde  v.  Vattier,  1  M'Lean  118;  Bowman  v.  Walker,  2  M'Lean 
376;  Sugd.  Vend.  &  Purch.  1052,  and  cases  cited;  Carr  v.  Hilton, 
1  Curt.  C.  C.  390;  Hasfymgs  v.  Spencer,  1  Curt.  C.  C.  504. 

In  the  case  before  us  this  rule  does  not  apply  to  the  matter  of 
defence  relied  upon.  The  note  was  signed  by  the  selectmen  for  Jhe 
defendant  town,  and  therefore  it  was  incumbent  upon  the  plaintiffs 
to  inquire  whether  it  was  signed  by  them  within  the  scope  of  their 
authority7and  given  for  a  aebt  for  which  the  credit  of  the  town  could 
properly  be  pledged  by  them,  and  this  was  all.  They  were  not  bound 
to  inquire  and  ascertain  whether  or  not  the  liquors  purchased  to  enable 
the  town  to  perform  the  duties  imposed  upon  it  by  statute,  were  puiv- 
chased  in  violation  of  a  law  of  Massachusetts,  or  not,  because  that 
question  was  not  one  material  to  the  authority  of  the  selectmen  to 
give  the  note.  If  they  examined  the  statute  under  which  the  town 
"acted,  they  found  no  special  provision  made  for  the  supply  of  the 
town  agents  with  liquors,  and  being  satisfied  that  the  note  was  given 
by  the  selectmen  within  the  scope  of  their  authority,  for  liquors 
actually  received  by  the  town  to  its  own  use,  they  were  not  required 
to  go  further,  and  inquire  into  the  provisions  of  the  statutes  of  another 
State,  and  into  the  question  whether  or  not  the  sale  of  the  liquors  for 
the  price  of  which  the  note  was  given  was  thereby  prohibited ;  and  if 
so,  still  further,  whether  or  not  our  courts  would  enforce  the  prohibi- 
tion here.  They  had  no  notice  of  any  such  facts,  nothing  to  call 
their  attention  to  them  and  put  them  upon  their  guard  in  relation  to 
them. 

To  hold  tliat  if  the  defendants  would  be  worse  off  in  defending 
against  the  note,  than  they  would  have  been  in  defending  against  the 
account  for  which  it  was  given,  the  selectmen  had  no  authority  to 
give  it,  would  make  the  authority  of  the  agents  depend  upon  the 
result  of  subsequent  proceedings  against  their  principal,   and  not 


CITY   OF   BRENHAM   V.    GERMAN    AMERICAN   BANK.  189 

qpon  the  question  whether  or  not  they  were  acting  at  the  time  of  the 
transaction  within  the  range  of  their  legal  authority.     This  would  be 
quite  absurd.     If  the  selectmen  liad  authority  to  give  a  negotiable  \--^^^^'^''^'<^ 
note  for  the  debt  incurred   in  the  purchase  of  liquor  for  the  to^~   ) 
"agency,  they  bad  that  authority  none   the  less,  because,  upon  weTT  / 
established  principles,  that  note  in  the  hands  of  a  bona  fide  indorsee  ^ 
for  a  valuable  consideration,    without  notice   and    before   maturity,     I 
might  not  be  open  to  some  defences  to  which  it  might  have  been  sub-     | 
ject  in  the  hands  of  the  original  paypp,  nr  wInVh  mioht  have  been     I    ' 
made  to  a  suit  to  enforce  the  debt  for  which  the  note  was  given,     j 
The  town  is  a  corporation,  and  like  all  other  corporations  must  be  / 
subject  to  the  same  rules  of  law  as  are  applicable  to  individuals.     It 
is  well  settled  that  an  individual  who  gives  his  note  for  liquors  sold 
in  violation  of  law,  cannot  be  permitted  to  show  the  illegal  consider- 
ation as  a  defence  to  a  suit  upon  the  note  by  an  actual  purchaser 
thereof  before  maturity  and  without  notice.     Whether  he  gave  the 
note  personally,  or  by  an  authorized  agent,  could  make  no  difference. 
So  it  must  be  with  a  town  or  other  corporation.     The  fact  that  the 
note  is  executed  by  an  agent  is  apparent  upon  its  face;  of  course  the 
purchaser  has  notice,  and  buys  the  note  at  the  risk  of  the  authority 
of  the  ageut  to  give  it,  but  this  is  all.     He  has  no  notice,  express  or 
implied,  of  any  illegality  in  the  consideration,  or  in  the  sale  whereby 
the  debt  was  created  for  which  the  note  was  given,  and  is  not  there- 
fore to  hold  it  subject  to  any  defence  of  that  character. 
With  these  views,  there  must  be 

Judgment  tipon  the  verdict- 


CITY   OF   BRENHAM   v.    GERMAN   AMERICAN   BANK. 

1892.     144  U.  S.  173.1 

Error  to  U.  S.  Circuit  Court  for  Western  District  of  Texas.      ^ V^^-»^ '^*vv^ 
Action  by  bank  against  the  city  of  Brenham  to  recover  upon  cou-05»^-^.  A/v-« 
pons  cut  from  negotiable  bonds  issued  by  it.     The  act  incorporating^-^*^^sK\/s,A 
the  city  contains  the  following  provisions:  —  '"^'^-'*-N-*a,  'v 

Art.  3,  Sect.  2:  "  That  the  city  council  shall  have  the  power  andiL>t,^iX>JSbi 
authority  to  borrow  for  general  purposes  not  exceeding  (Sl5,000)  ikj_^j..,,.^_^.,^ 
fifteen  thousand  dollars  on  the  credit  of  said  city."  ^- 


Art.  7,  Sect.  1:  "  Bonds  of  the  corporation  of  the  city  of  Brenham  siyf.^^sSL_i_^ 
shall  not  be  subject  to  tax  under  this  act."  ^*'~*'-^-nj^»,^ 

The  Texas  Constitution  of  1876  provides  that  no  city  "  shall  here^^-t^N^  .^j, 
after  become  a  subscriber  to  the  capital  of  any  private  corporation  ci.i:i[:j^   •     ^ 
or  association,  or  make  any  appropriation  or  donation  to  the  same,  oi  -s*-*.^:,*^-^^ 
in  anywise  loan  its  credit;  ..."  %-^*"*^-'^>J».»v,\:q  \>-%vj 


1  Statement  abridered.    Portions  of  opinions  omitted.  —  Ed.  I?'^"'^^'^"^*^  vS^*^  '^S^ 


190  CITY   OF  BKENHAM   V.   GEKMAN   AMERICAN   BANK. 

The  bonds  in  question,  to  the  amount  of  $15,000,  were  issued  in 
1879,  "  for  general  purposes,"  under  a  city  ordinance. 

The  plaintiffs  claimed  to  have  the  rights  of  bona  fide  purchasers, 
for  value,  before  maturity. 

Upon  the  trial  the  court  charged  the  jury,  that  the  power  in  the 
city  to  borrow  money  carried  with  it  the  authority  to  issue  the  bonds, 
and  that  the  defendant  had  capacity  to  issue  the  bonds  in  question 
as  commercial  paper,  and  bind  itself  to  pay  them  and  the  coupons. 
To  this  ruling,  the  defendant  excepted.  Verdict  for  plaintiff,  and 
judgment  thereon. 

S.  B.  Fisher^  for  plaintiff  in  error. 

A.  H.  Garland  and  Henry  Saijles,  for  defendant  in  error. 

Blatchford,  J.  .  .  .  The  principal  contention  on  the  part  of  the 
toiefendant  is  that  it  was  without  authority  to  issue  the  bonds,  and 
that  they  were  void  for  all  purposes  and  in  the  hands  of  all  persons. 

There  is  nothing  in  the  charter  of  the  defendant  which  gives  it  any 
/  power  to  issue  negotiable,  interest-bearing  bonds  of  the  character  of 
1  Ihose  involved  in  the  present  case.  The  only  authority  in  the  charter 
I  that  is  relied  upon  is  the  power  given  to  borrow,  for  general  purposes, 
\    not  exceeding  $15,000,  on  the  credit  of  the  city.  .   .   . 

That  in  exercising  its  power  to  borrow  not  exceeding  $15,000  on 
its  credit,  for  general  purposes,  the  city  could  give  to  the  lender,  as_ 
a  voucher  for  the  repayment  of  the  money,  evidence  of  indebtedness 
in  the  shape  of  non-negotiable  paper,  is  quite  clear;  but  that  does 
not  cover  the  right  to  issue  negotiable  paper  or  bonds,  unimpeach-" 
able  in  the  hanas  ot  a  bona  jiae  nolder.  m  the  present  case,  it 
appears  that  Menslng'  bought  frohi  thellefendant  $5000  of  the  bonds 
at  95  cents  on  the  dollar,  and  that  other  $7000  of  the  bonds  were  sold 
by  the  city  for  the  same  price,  it  thus  receiving  only  $11,400  for 
$12,000  of  the  bonds,  and  suffering  a  discount  on  them  of  $600.  The 
city  thus  agreed  to  pay  $12,000,  and  interest  thereon,  for  $11,400 
borrowed.  This  shows  the  evil  working  of  the  issue  of  bonds  for 
more  than  the  amount  of  money  borrowed. 

It  appears  by  the  record  that  depot  grounds  in,  and  the  right  of 
way  through,  the  city  of  Brenham  were  bought  for  the  Gulf,  Colorado 
and  Santa  Fe  Railroad  Company  with  money  realized  from  the  sale 
of  bonds  issued  under  the  ordinance  of  June  7,  1879,  and  that  $3000 
of  such  bonds  were  used  by  the  city  for  fire  department  purposes. 

The  power  to  borrow  the  $11,400  would  not  have  been  nugatory, 
unaccompanied  by  the  power  to  issue  negotiable  bonds  therefor. 
Merrill  v.  Monticello,  138  U.  S.  673,  687-  Williarns  v.  Davidson, 
43  Texas,  1,  33,  34;  Citi/  of  Cleburne  v.  Railroad  Company,  66 
Texas,  461;  1  Dillon  on  Municipal  Corp.  4th  ed.  §  89,  and  notes; 
§  91,  n.  2;  §  126,  n.  1;  §§  507,  507  a. 

The  confining  of  the  power  in  the  present  case  to  a  borrowing  of 
money  for  general  purposes  on  the  credit  of  the  city,  limits  it  to  the 


CITY   OF    BRENHAM   V.   GERMAN   AMERICAN    BANK.  19\ 

power  to  borrow  money  for  ordinary  governmental  purposes,  such  as 
are  generally  carried  out  with  revenues  derived  from  taxation ;  and 
the  presumption  is  tbat  the  grant  of  the  power  was  intended  to  con- 
fer the  right  to  borrow  money  in  anticipation  of  the  receipt  of  revenue 
taxes,  and  not  to  plunge  the  municipal  corporation  into  a  debt  on 
which  interest  must  be  paid  at  the  rate  of  ten  per  centum  per  annum, 
semi-annually,  for  at  least  ten  years.  It  is  easy  for  the  legislature 
to  confer  upon  a  municipality,  when  it  is  constitutional  to  do  so,  the 
power  to  issue  negotiable  bonds;  and,  under  the  well-settled  rule 
that  any  doubt  as  to  the  existence  of  such  power  ought  to  be  deter- 
mined against  its  existence,  it  ought  not  to  be  held  to  exist  in  the 
present  case. 

A  review  of  the  cases  on  this  subject  in  this  court  will  be  useful. 

[The  learned  Judge  then  cited,  and  commented  upon,  Rogers  v. 
Burlington^  3  Wallace,  654;  Mitchell  v.  Burlington,  4  Wallace,  270; 
Police  Jury  v.  Britton,  15  Wallace,  566 ;  Claiborne  County  v.  Brooks, 
HI  U.  S.  400;  Concord  v.  Eobinson,  121  U.  S.  165;  Kelley  v.  Milan, 
127  U.  S.  139;  Norton  v.  Dyershurg,  127  U.  S.  160;  Young  v.  Claren- 
don Toicnshijj,  132  U.  S.  340;  and  Hill  v.  Memphis,  134  U.  S.  198. 
He  quoted,  inter  alia,  the  statement  of  Mr.  Justice  Bi'adley  in  Police 
Jury  V.  Britton  —  that  it  was  one  thing  for  county  and  parish  trus- 
tees to  have  the  power  to  incur  obligations  for  work  actually  done  in 
behalf  of  the  county  or  parish,  and  to  give  proper  vouchers  therefor, 
and  a  totally  different  thing  to  have  the  power  of  issuing  unimpeach- 
able paper  obligations,  which  might  be  multiplied  to  an  indefinite 
extent.] 

In  Merrill  v.  Monticello,  138  U.  S.  673,  687,  691,  it  was  held  that 
the  implied  power  of  a  municipal  corporation  to  borrow  money  to 
onable  it  to  execute  the  powers  expressly  conferred  upon  it  by  law, 
if  existing  at  all,  did  not  authorize  it  to  create  and  issue  negotiable 
securities  to  be  sold  in  the  market  and  to  be  taken  by  the  purchaser 
freed  from  the  equities  that  might  be  set  up  by  the  maker;  and  that  to 
borrow  money,  and  to  give  a  bond  or  obligation  therefor  which  might 
circulate  in  the  market  as  a  negotiable  security,  freed  from  any  equi- 
ties that  might  be  set  up  by  the  maker  of  it,  were  essentially  different 
transactions  in  their  nature  and  legal  effect.  In  the  opinion  of  the 
court,  which  was  delivered  by  Mr.  Justice  Lamar,  the  cases  of  Police 
Jury  V.  Britton,  Claiborne  County  v.  Brooks,  Kelley  v.  Milan,  Young 
V.  Clarendon  Township  and  Hill  v.  Memphis  were  cited  with  approval. 
It  was  added:  "  It  is  admitted  that  the  power  to  borrow  money,  or 
to  incur  indebtedness,  carries  with  it  the  power  to  issue  the  usual 
evidences  of  indebtedness,  by  the  corporation,  to  the  lender  or  other 
creditor.  Such  evidences  may  be  in  the  form  of  promissory  notes, 
warrants,  and,  perhaps,  most  generally,  in  that  of  a  bond.  But  there 
is  a  marked  legal  difference  between  the  power  to  give  a  note  to  a 
lender  for  the  amount  of  money  borrowed,  or  to  a  creditor  for  the 
amount  due,  and  the  power  to  issue  for  sale,  in  open  market,  a  bond, 


192  CITY   OF   BRENHAM   V.    GERMAN   AMERICAN   BANK. 

as  a  commercial  security,  witli  immunity,  in  the  hands  of  a  bona  fide 
bolder  for  value,  from  equitable  defences.  The  plaintiff  in  error 
contends  that  there  is  no  legal  or  substantial  difference  between  the 
two;  that  the  issuing  and  disposal  of  bonds  in  market,  though  in 
common  parlance,  and  sometimes  in  legislative  enactment,  called 
a  sale,  is  not  so  in  fact;  and  that  the  so-called  purchaser  who  takes 
the  bond  and  advances  his  money  for  it  is  actually  a  lender,  as 
much  so  as  a  person  who  takes  a  bond  payable  to  him  in  his  own 
name." 

The  opinion  then  stated  that  the  logical  result  of  the  doctrines  an- 
nounced in  the  five  cases  which  it  cited  clearly  showed  that  the  bonds 
sued  on  in  the  case  of  Merrill  v.  llonticello  were  invalid,  and  added: 
"  It  does  not  follow  that,  because  the  town  of  Monticello  had  the 
right  to  contract  a  loan,  it  had,  therefore,  the  right  to  issue  negotia- 
ble bonds  and  put  them  on  the  market  as  evidences  of  such  loan.  To 
borrow  money,  and  to  give  a  bond  or  obligation  therefor  which  may 
circulate  in  the  market  as  a  negotiable  security,  freed  from  any  equi- 
ties that  may  be  set  up  by  the  maker  of  it,  are,  in  their  nature  and  in 
their  legal  effect,  essentially  different  transactions.  In  the  present 
case,  all  that  can  be  contended  for  is,  that  the  town  had  the  power  to 
contract  a  loan,  under  certain  specified  restrictions  and  limitations. 
Nowhere  in  the  statute  is  there  any  express  power  given  to  issue 
negotiable  bonds  as  evidence  of  such  loan.  Nor  can  such  power  be 
implied,  because  the  existence  of  it  is  not  necessary  to  carry  out  any 
of  the  purposes  of  the  municipality.  It  is  true  that  there  is  a  con- 
siderable number  of  cases,  many  of  which  are  cited  in  the  brief  of 
counsel  for  plaintiff  in  error,  which  hold  a  contrary  doctrine.  But 
.  the  view  taken  by  this  court  in  the  cases  above  cited  and  others 
seems  to  us  more  in  keeping  with  the  well  recognized  and  settled 
principles  of  the  law  of  municipal  corporations." 

We,  therefoi'e,  must  regard  the  cases  of  Rogers  v.  Burlington  and 
Mitchell  V.  Burlington  as  overruled  in  the  particular  referred  to,  by 
later  cases  in  this  court.  See  1  Dillon's  Mun.  Cor.  4th  ed.  §§  507. 
507  a. 

We  cannot  regard  the  provision  in  the  charter  of  the  city,  that 
bonds  of  the  corporation  of  the  city  "■  shall  not  be  subject  to  tax 
und*n-  this  act,"  as  recognizing  the  validity  of  the  bonds  in  question. 
Whatever  that  provision  may  mean,  it  cannot  include  bonds  unlaw- 
fully issued. 

As  tlicre  was  no  authority  to  issue  the  bonds,  even  a  hona  fide 
bolder  of  them  cannot  have  a  vi<rlit  to  rerover  upon  them  or  their 
coupons.  Marsh  v.  Fulton  Countij^  10  Wall.  676;  E((st  Oakland  \. 
~Bkinner,  94  U.  S.  255;  Buchanan  v.  Litchfield,  102  U.  S.  278;  lia^jes 
V.  71  oily  Springs,  114  U.  S.  120;  Daviess  Count]/  v.  Dickinson,  117 
U.  S.  657;  Hopper  v.  Covington,  118  U.  S.  148,  151;  Merr-ill  v. 
Montire/lo,  138  U.  S.  673,  6<S1,  682. 


CITY   OF  BRENHAM   V.   GERMAN   AMERICAN   BANK. 


193 


As  the  action  here  is  directly  upon  the  coupons,  and  there  is  no 
right  of  recovery  upon  them,  the  judgment  must  be 
Reversed,  and  case  remanded  to  the  Circuit  Courts  with  a  direction  .  .  . 

to  enter  ...   a  general  judgment  for  the  defendant.^ 

Harlan,  J.  (with  whom  concurred  Brewer,  J.,  and  Brown,  J.),'X!X>. 
disseuting. 

[After  reviewing  various  cases  cited  in  the  majority  opinion.] 

It  thus  appears  that  in  no  one  of  the  above  cases,  decided  since 
Rogers  v.  Burlington,,  was  there  any  question  as  to  negotiable  secur- 
ities being  issued  under  an  express  power  to  horrotv  money;  and  that 
some  of  them  concede  that  such  a  power  carries  with  it  authority  to 
give  a  negotiable  paper  for  money  borrowed. 

The  case  which  seems  to  be  much  relied  upon  to  support  the  present 
judgment  is  Merrill  v.  Monticello.  But  we  submit  that  it  does  not 
sustain  the  broad  doctrine  that  negotiable  securities  may  not  be 
issued  in  execution  of  an  express  power  to  borrow  moneij.  What 
could  or  could  not  be  done,  under  such  a  power,  was  not  a  question 
involved  in  that  case.  The  question  was  whether  authority  in  tha 
town  of  Monticello  to  issue  negotiable  bonds  could  be  implied,,  not 
from  an  express,  but  from  an  Implied  power  to  borrow  money. 

[After  commenting  upon  Merrill  v.  Monticello,,  138  U.  S.  673,  and 
City  of  Savannah  \^  Kelly,  108  U.  S.  184.] 

It  is,  perhaps,  proper  to  say  that  our  views  find  support  in  the 
admirable  commentaries  of  Judge  Dillon  on  the  Law  of  Municipal 
Corporations.  The  court  refers  to  sections  507  and  507  a  of  those 
Commentaries.  But  those  sections  do  not,  in  any  degree,  support 
the  conclusion  reached  in  this  case.  The  doctrine  which  the  learned 
author  declares,  in  those  sections,  to  be  alike  unsound  and  dangerous, 
is,  "  that  a  public  or  municipal  corporation  possesses  the  implied 
power  to  borrow  money  for  its  ordinary  purposes,  and  as  i?icidental 
thereto  the  power  to  issue  commercial  securities,  that  is,  paper  which 
cuts  off  defences  when  it  is  in  the  hands  of  a  holder  for  value  acquired 
before  it  is  due."  But  Judge  Dillon,  while  agreeing  that  the  power 
to  issue  commercial  paper,  unimpeachable  in  the  hands  of  a  bona 
fide  holder,  is  not  among  the  ordinary  Incidental  powers  of  a  public 
municipal  corporation,  and  must  be  conferred  expressly,  or  by  fair 
implication,  says,  af.er  a  careful  review  of  the  authorities:  ^^ Expjress 
power  to  borrow  money,  perhaps,  in  all  cases,  but  especially  if  con- 
ferred to  effect  objects  for  which  large  or  unusual  sums  are  required, 
as,  for  example,  subscriptions  to  aid  railways  and  other  public 
improvements,  will  ordinarily  be  taken,  if  there  be  nothing  in  the 
legislation  to  rtegative  the  inference,  to  include  the  power  (the  same 
as  if  conferred  upon  a  corporation  organized  for  pecuniary  profit) 
to  issue  negotiable  paper  with  all  the  incidents  of  negotiability." 

^  In  144  U.  S.  549,  a  petition  for  rehearing  was  denied  ;  but  the  above  order  wag 
modified.  The  judgment  below  was  reversed,  and  the  cause  was  remanded  for  furthe? 
proceedings  not  iucousi.stent  with  the  above  opinion  of  Blatchford,  J.  — Ed. 

13 


194 


CITY    OF    BRENHAM   V.    GERMAN    AMERICAN  BANK. 


1  Dillon's  Muu.  Corp.  §  125,  4th  ed.  It  is  eminently  just  to  apply 
that  rule  iu  the  present  case,  because  the  act  giving  the  city  of 
Breuham  authority  to  borrow,  not  exceeding  $15,000,  for  general 
purposes,  expressly  provided  that  its  bonds  should  not  be  subject  to 
tax  under  that  act.  Such  a  provision  could  have  had  reference  only 
to  negotiable  bonds,  which  would  be  put  upon  the  market  for  the 
purpose  of  raising  money. 

It  seems  to  us  that  the  court,  in  the  present  case,  announces  for  the 
.  iirst  time  that  an  express  power  in  a  municipal  corporation,  to  borrow 
-4^  /  money,  for  corporate  or  genei'al  purposes,  does  not,  under  any  cir- 
cumstances, carry  with  it,  by  implication,  authority  to  execute  a 
negotiable  promissory  note  or  bond  for  the  money  so  borrowed,  and 
that  any  such  note  or  bond  is  void  in  the  hands  of  a  bona  fide  holder 
for  value.  There  are,  perhaps,  few  municipal  corporations  anywhere 
that  have  not,  under  some  circumstances,  and  within  prescribed  limits 
as  to  amount,  express  authority  to  borrow  money  for  legitimate, 
corporate  purposes.  While  this  authority  may  be  abused,  it  is  often 
vital  to  the  public  interests  that  it  be  exercised.  But  if  it  may  not 
be  exercised  by  giving  negotiable  notes  or  bonds  as  evidence  of  the 
indebtedness  so  created  —  which  is  the  mode  usually  adopted  in  such 
cases  —  the  power  to  borrow,  however  urgent  the  necessity,  will  be 
of  little  practical  value.  Those  who  have  money  to  lend  will  not  lend 
it  upon  mere  vouchers  or  certificates  of  indebtedness.  The  aggregate 
amount  of  negotiable  notes  and  bonds,  executed  by  municipal  corpo- 
rations, for  legitimate  purposes,  under  express  power  to  boiTOw 
money  simply,  and  now  outstanding  in  every  part  of  the  country, 
must  be  enormous.  A  declaration  by  this  court  that  such  notes  and 
bonds  are  void,  because  of  the  absence  of  exjyress  legislative  authority 
to  execute  negotiable  instruments  for  the  money  borrowed,  will,  we 
fear,  produce  incalculable  mischief.  Believing  the  doctrine  announced 
by  the  court  to  be  unsound,  upon  principle  and  authority,  we  do  not 
feel  at  liberty  to  withhold  an  expression  of  our  dissent  from  the 
opinion. 


nS  Mr'-f'-^-'^'-  4-lo    ^3.    » '^^'n  ,  ^^^^sJl 


CITY   OF  VALPARAISO   V.   GARDNER.  195 


V'/' 


CHAPTER  V.  A__^-/'  ir^/^"'^^ 

EXPRESS  RESTEICTIONS  ON  THE  POWER    TO  BECOME  INDEBTED. 


CITY  OF  VALPARAISO   v.    GARDNER. 

1884.     97  Indiana,  l.i 

From  the  Porter  Circuit  Court. 

E.  D.    Crumpacker^  H.   A.   Gillette  and  A.   D.  Bartholomeiv,  for 
appellants. 

W.  Johnston,  for  appellee. 

Elliott,  C.  J.  The  complaint  of  the  appellee  avers  that  he  is  a 
resident  taxpayer  of  the  city  of  Valparaiso;  that  the  municipal 
officex's  are  about  to  let  a  contract  to  a  water-works  company  for  sup- 
plying the  city  with  water  for  a  period  of  twenty  years,  at  an  annual »  »  p.  t>. 
expense  to  the  municipality  of  $6,000;  that  the  corporate  indebted-  *'<*-^"^^- 
ness  exceeds  five  per  centum  of  the  assessed  value  of  the  taxable < 
property  of  the  city  and  that  there  is  no  money  in  the  treasury.  The,^j^^X^.gJc3LjLy> 
prayer  of  the  complaint  is  for  an  injunction  restraining  the  corporate  rvvjb-^  tx.  <\ 
authorities  from  entering  into  the  contract.  SL»>*j(ruiAj>.Ajc 

The  appellants  answered,  admitting  that  the  appellee  was  a  tax-  ;*^  Va^^.  A^ 
payer ;  that  the  city  was  indebted  in  excess  of  two  per  centum  of  the  ik  -^J^jj^  Xa> 
aggregate  value  of  the  taxable  property,  and  averring  that  the  city  yP-  ^  » -jr 
has  a  population  of  over  five  thousand  persons  and  is  rapidly  increas-  *» 
ing  in  population;  that  it  has  no  facilities  for  extinguishing  fires  ^ 
except  three  cisterns,  which  are  wholly  inadequate,  and  that  the 
safety  of  the  city  demands  that  the  contract  mentioned  in  the  com- 
plaint be  entered  into  and  a  supply  of  water  secured ;  that  the  assessed  Vy^^^f^'^  '  ^ 
value  of  taxable  propert}',  as  shown  by  the  assessment  roll,  amounted  jC^*"*^^ 

to  Si, 3.50, 000;  that  from  other  sources  than  taxation  the  revenue  of  ~^^^^^  o^j 
the  city  is  S2,.500  per  annum;  that  the  ordinary  current  expenditures  r\  vr"^-^^ 
are  less  than  $6,000  per  annum,  and  that  the  annual  revenues  of  the  ^^    T^  ^ 


city  are  sufficient  to  pay  all  the  ordinary  expenditures  of  the  city  and  ^^*~-*-  ^  ^( 

the  water  rent  of  SB, 000  per  annum,  besides  providing  for  the  accu-  '^  "^^^  '  ^ 

mulation  of  a  sinking  fund,  as  the  law  requires;  that  the  intention  was  '-^  ***    o 

that  the  terms  of  the  proposed  contract  should  be  so  adjusted  that  ^^-*-^"^^^^~^ 

when  the   water-works  were   completed  and  an    instalment  of   rent  ^  c>*w>jnj 

earned,  there  would   be  money  sufficient  in  the  treasury  to  pay  it,  tP'^  ^  '''r' 

derived  from  current  revenues,  and  to  so  fix  the  time  of  the  paymenl  >^j^fi^  X^ 

1  Portions  of  opinion  omitted.  —  Ed.  ^  f   ^"^ 


196  CITY   OF   VALPAEAISO   V.    GARDNER. 

of  future  instalments  that  they  should  be  within  the  current  revenues 
of  the  city,  and  yet  leave  money  sufficient  to  meet  all  other  corporate 
expenses. 

In  1881  an  amendment  to  the  Constitution  was  adopted,  in  which 
this  provision  is  incorporated:  "No  political  or  municipal  corpora- 
tion in  this  State  shall  ever  become  indebted,  in  any  manner  or  for 
any  purpose,  to  an  amount,  in  the  aggregate,  exceeding  two  per 
centum  on  the  value  of  the  taxable  property  within  such  corporation, 
to  be  ascertained  by  the  last  assessment  for  State  and  county  taxes 
previous  to  the  incurring  of  such  indebtedness;  and  all  bonds  or 
obligations,  in  excess  of  such  amount,  given  by  such  corporation, 
shall  be  void."  This  provision  received  consideration  in  Sac kett  \. 
City  of  New  Albany^  88  Ind.  473,  but  the  question  there  presented 
and  decided  was  very  different  from  that  which  here  faces  us.  The 
point  decided  in  that  case  was  that  a  city  could  not  issue  bonds  for 
current  expenses  where  there  were  no  funds  in  the  treasury  and  the 
existing  indebtedness  exceeded  two  per  centum  of  the  value  of  the 
taxable  property  of  the  municipality.  There  the  question  was  not 
whether  the  claim  which  the  municipal  officers  were  about  to  pay  in 
bonds  was  or  was  not  a  debt  within  the  meaning  of  the  Constitution; 
while  here  that  is  the  question,  so  that  we  come  to  the  decision  of 
this  case  unfettered  by  any  former  adjudication  of  this  court. 

The  question  is  a  grave  one,  and  not  entirely  without  difficulty. 
If  we  hold  that  the  contract  to  pay  an  annual  water  rent  of  $6,000 
during  a  period  of  twenty  years  creates  a  debt  for  the  aggregate  sum 
of  $120,000,  and  is  a  debt  within  the  prohibition  embodied  in  the 
Constitution,  we  should  lay  down  a  principle  that  would,  in  a  great 
majority  of  instances,  put  an  end  to  municipal  government.  If  it 
be  true  that  an  agreement  to  pay  a  given  sum  each  vear  for  a  long 
period  of  years  constitutes  a  debt  for  the  aggregate  sum  resulting 
from  adding  together  all  the  yearly  instalments,  then  it  is  extremely 
doubtful  whether  there  Is  a  city  in  the  !State  that  has  authority  to 
2'epair  a  street,  dig  a  cistern  or  build  a  sidewalk,   for  nearly  every 


city  has  contracts  for  gas  and  water  supplies  running  for  a  long  series 


of  years,  in  which  the  aggregate  amount  of  annual  rents  would  of 
t^hemselves  equal,  if  not  exceed,  ttie  limit  of  two  per  centum  on  tEe 
value  of  taxable  properTy!      We  know,  as  matter  of  general  knowl- 


edge, that  water-works  and  gas-works  require  the  outlay  of  enormous 
sums  of  money,  and  that  such  enterprises  are  not  undeitaken  under 
contracts  running  for  short  periods  of  time.  If  the  aggregate  sum 
of  all  the  yearly  rents  i'S  to  be  taken  as  a  debt  within  the  meaning  of 
the  Constitution,  then  many  cities  will  be  left  without  the  means  of 
procuring  things  so  essential  to  public  welfare  and  safety.  We  are 
not  to  presume,  unless  coerced  by  the  rigor  of  the  words  used,  that 
the  framers  of  the  amendment,  or  the  electors  who  voted  for  it, 
intended  to  destroy  the  corporate  existence  of  our  municipalities  or 


CITY   OF   VALPARAISO   V.    GARDNER.  197 

to  leave  them  without  water  or  light.  Nor  are  we  to  presume  that 
the  electors  were  ignorant  of  the  existence,  condition  and  necessities 
of  our  great  towns  and  cities.  On  the  contrary,  we  are  to  presume 
that  these  things  were  known  to  the  electors,  and  that  they  intended 
to  foster  the  best  interests  of  these  instrumentalities  of  local  govern- 
ment. An  error  frequently  finds  its  way  into  trains  of  reasoning 
from  the  assumption,  often  made,  that  the  officers  are  the  corpora- 
tion. This  assumption  is  radically  erroneous,  for  it  is  the  inhabi- 
tants, and  not  the  ofKcers,  who  constitute  the  public  corporations  of 
the  land.  Grant  Corp.  357;  Lowber  v.  Maijor,  etc.,  5  Abbott  Pr. 
325.  Clarke  v.  City  of  Rochester,  24  Barb.  446.  To  deny  the  right 
to  procure  water  and  light  is  to  deny  it  to  the  inhabitants  of  the 
towns  and  cities,  and  these  form  no  inconsiderable  part  of  the  pop- 
ulation of  the  State.  We  cannot,  therefore,  by  mere  intendment 
declare  that  the  electors  of  the  State  meant  to  lay  down  a  rule  that 
should  practically  take  from  the  inhabitants  of  our  cities  the  power 
to  supply  themselves  with  water  or  light.  To  reach  the  conclusion 
that  they  meant  to  do  this,  we  must  find  clear  warrant  in  the  language 
of  the  constitutional  provision  itself.  We  agree  that  if  it  be  found 
that  the  language  used  is  clear  and  explicit,  we  must  give  it  effect, 
no  matter  how  disastrous  the  consequences  may  be.  While  it  is  our 
duty  to  yield  to  the  words  of  the  Constitution,  still,  in  determining 
what  meaning  they  were  intended  to  have,  it  is  proper  to  consider 
the  circumstances  under  which  the  provision  was  adopted  and  the 
object  it  was  intended  to  accomplish.  Cooley  Const.  Lim.  (5th  ed.) 
78,  79. 

In  view  of  the  warring  among  the  adjudged  cases  it  is  not  easy  to 
aflSrm  that  the  word  "debt"  has  a  firmly  settled  meaning.  In  one 
case  it  was  said,  "But  the  compensation  to  this  contractor  was  not  a 
debt  within  the  sense  of  this  provision,  until  the  service  was  per- 
formed and  the  contractor  was  entitled  to  be  paid.  It  was,  no  doubt, 
an  obligation,  in  some  sense,  from  the  time  the  contract  was  entered 
into,  but  it  was  not  a  debt  in  the  popular  sense  "  of  the  term.  Weston, 
V.  City  of  Syracuse,  17  N.  Y.  110.  A  similar  definition  is  annexed 
to  the  word  in  the  opinion  of  the  court,  written  by  the  eminent 
jurist.  Judge  Denio,  in  Garrison  v.  Hoive^  17  N.  Y.  458.  It  was 
said  in  Went  worth  v.  Whittemore,  1  Mass.  471,  "  but  whenever  it  is 
uncertain  whether  anything  will  ever  be  demandable  by  virtue  of  the 
contract  it  cannot  be  called  a  debt."  By  the  Supreme  Court  of 
California  it  was  said:  "A  sum  payable  upon  a  contingency,  how- 
ever, is  not  a  debt,  or  does  not  become  a  debt  until  the  contingency 
has  happened."  People  v.  Arguello,  37  Cal.  524.  In  Sackett  v. 
City  of  New  Albany,  supra,  this  language  was  used:  "  By  '  indebted- 
ness,' in  this  connection,  we  mean  an  agreement  of  some  kind  by  the 
city  to  pay  money  where  no  suitable  provision  has  been  made  for 
the  prompt  discharge  of  the  obligation  imposed  by  the  agreement." 
Conceding  that  there  are  cases  giving  the  word  "  debt"  a  somewhat 


198 


CITY   OF  VALPARAISO   V.    GARDNER. 


different  meaning  from  that  affixed  to  it  by  these  authorities,  still 
they  are  sufficient  to  prove,  at  least,  that  the  word  cannot  be  said  to 
have  a  firmly  settled  meaning.  It  is  not  necessary  for  us  to  decide 
that  the  meaning  given  the  word  in  the  cases  cited  is  that  which  the 
word  invariably  possesses,  for  it  is  sufficient  for  our  purpose  to 
assume  that  its  meaning  is  not  so  fixed  and  definite  as  to  forbid  con- 
struction. The  word  used  in  the  constitution  is  "indebted,"  but 
without  ascertaining  what  the  word  "debt"  means  we  cannot  affix 
a  meaning  to  that  word,  for  its  popular  meaning  is  "  placed  in  debt," 
or  as  Worcester  puts  it,  "  being  in  debt."  It  is  obvious  that  a  cor- 
poration owing  no  debt  cannot  be  indebted. 

OuMeading  purpose  is,  therefore,  to  ascertain  what  meaning  the 
authors  of  the  Constitution  intended  the  word  "  indebted"  to  have^^ 
and  we  address  ourselves  to  its  accomplishment,     it  Is  clear  that  if 


the  city  should  fail  to  perform  its  contract,  the  recovery  would  be  for 
damages  for  a  breach  of  contract,  and  not  the  contract  rate  of  com- 

ensation,_and,   therefore,  it  cannot  be  true  that  thf^  wHoIp  of  fha. 

compensation  is  certainly  demandable  by  the  corporation  with  whicjj 

contracts!     It  may  De  that  but  a  small  part  of  even  one  year's 

ompensation  can  be  recovered.  On  the  other  hand,  the  failure  of 
the  water  company  to  perform  may  put  an  end  to  the  contract,  and 
that  would,  of  course,  terminate  all  liability  of  the  municipal  corpo- 
ration. There  could  be  no  action  maintained  against  the  city  for  the 
recovery  of  compensation  under  the  contract  without  evidence  that 
the  water  had  been  furnished,  and  this  proves  that  there  is  no 
indebtedness  until  the  water  has  been  supplied  in  accordance  with 
the  terms  of  the  contract. 

The  effect  of  the  proposed  contract  is  that  the  city  shall  be  liable 
for  water  as  it  is  furnished  and  not  before.  It  is  not  until  after  the 
water  has  been  furnished  that  there  can  be  justly  said  to  be  a  debt, 
for,  while  there  might  be  a  liability  for  damages,  in  case  of  a  breach 
on  the  part  of  the  city,  there  is  certainly  none  under  the  contract  until 
the  city  has  received  that  for  which  it  contracted.  If  it  can  pay  this 
indebtedness  when  it  comes  into  existence,  without  exceeding  the 
constitutional  limitation,  then  there  is  no  violation  of  the  letter,  and 
surely  none  of  the  spirit  of  the  Constitution.  We  are  careful  to  say 
when  the  debt  comes  into  existence,  and  not  to  say  when  it  becomes 
due,  for  between  these  things  there  is  an  essential  difference.  The 
object  to  be  accomplished  by  the  amendment,  the  condition  and 
necessities  of  our  municipalities,  as  known  to  the  authors  of  the 
amendment,  and  the  just  force  of  the  language  employed,  authorize 
us  to  conclude  that  the  inhibition  of  the  Constitution  does  not  apply 
to  contracts  for  water  to  be  paid  for  as  the  water  is  furnished,  pro- 
vided it  is  shown  that  the  contract  price  can  be  paid  from  the  current 
revenues  as  the  water  is  furnished  and  without  increasing  the  corpo- 
Tate  indebtedness  beyond  the  constitutional  limit. 


CITY   OF  VALPARAISO   V.   GARDNER.  199 

The  question  was  verj'  fully  discussed  in  Grant  v.  Cifi/  of  Daven- 
port, 36  Iowa,  3'JG,  where  it  Avas  held  that  a  contract  entered  into  by 
the  city  for  the  supply  of  water  for  a  term  of  years,  at  an  annual 
rental,  is  one  relating  to  the  ordinary  expenses  of  the  city,  and  that 
the  annual  rental  is  not  an  indebtedness  within  the  meaning  of  the 
Constitution.  One  of  the  illustrations  used  in  the  course  of  the 
opinion  is  so  apt  that  we  quote  it:  "  Suppose  a  man  having  a  family 
to  support  is  without  other  means  to  do  it,  except  his  salary,  which 
is  adequate  for  that  purpose.  He  is  compelled  to  rent  a  house  to 
live  in,  and  by  a  contract  for  a  term  of  j^ears  he  can  reduce  its  cost, 
and  he  therefore  makes  a  lease  for  ten  years  at  $300  per  year,  or 
S3, 000  for  the  term,  the  rent  being  payable  monthly,  quarterly  or 
annually.     Has  that  man  created  an  indebtedness  of  63,000?" 

We  have  assumed  that  the  supply  of  water  is  necessary  to  the  wel- 
fare of  the  inhabitants  of  the  municipality,  and  that  it  constitutes 
one  of  the  items  of  current  expenditure  essential  to  the  welfare  of 
the  corporation,  and  this  assumption  rests  upon  the  facts  pleaded  in 
the  answer.  This  distinguishes  the  case,  as  is  well  shown  in  Grant 
v.  Citi/  of  Davenport,  supra,  from  the  cases  in  which  property  is  pur- 
chased or  subscriptions  made  to  the  capital  stock  of  railroad  or  other 
corporations.  It  is  the  items  of  expense  essential  to  the  maintenance 
of  corporate  existence,  such  as  light,  water,  labor  and  the  like,  that 
constitute  current  expenses  payable  out  of  current  revenues.  The 
authorities  agree  that  current  revenues  may  be  applied  to  such  pur- 
poses even  though  the  effect  be  to  postpone  judgment  creditors.  Coy 
V.  Citi/  Council,  17  Iowa,  1;  Coffin  v.  Citt/  Council,  26  Iowa,  515; 
Grant  v.  Cif>/  of  Davenport,  sttpra.  When  the  current  revenues  are 
sufficient  to  fully  pay  the  current  expenses  necessarily  incurred  to 
)naintain  corporate  life,  there  cannot  be  said  to  be  any  debt.  We 
do  not  assert  that  a  debt  may  be  created  even  for  current  expenses, 
if  its  effect  will  be  to  extend  the  corporate  indebtedness  beyond  the 
constitutional  limit,  but  we  do  assert  that  where  the  current  revenues 
are  sufficient  to  defray  all  current  expenses  without  increasing  the 
indebtedness,  there  is  then  no  corporate  debt  incurred  for  such 
expenses.  To  illustrate  our  meaning,  suppose  a  laborer  is  employed 
on  the  first  day  of  April  to  render  services  on  the  first  day  of  May, 
that  on  the  day  of  the  employment  there  is  no  money  in  the  treasurj', 
but  on  the  first  day  of  May,  when  the  services  are  rendered,  there  will 
be  more  than  enough  yielded  by  the  current  revenues,  there  is  in  such 
a  case  really  no  debt.  Again,  suppose  that  on  the  first  day  of  April 
gas  is  needed  for  that  month,  and  that  on  each  day  of  that  month  the 
current  revenues  are  sufficient  to  pay  each  day's  gas  bill,  there  will 
be  no  debt  even  though  there  was  not  sufficient  money  to  pay  the 
month's  account  in  the  treasury  on  the  day  the  contract  was  made- 
Such  contracts  do  not  create  a  debt  prior  to  the  rendition  of  the  ser- 
vices in  the  one  case,  or  to  the  furnishing  of  gas  in  the  other;  they 


200  CITY   OF   VALPAEAISO   V.   GARDNER. 

simply  devote  to  current  expenses  current  revenues.  While,  as 
decided  in  Sackett  v.  Citij  of  New  Albany^  sujjva,  the  debt  cannot 
be  made  to  exceed  the  constitutional  limit  even  for  current  expenses, 
no  matter  how  urgent,  yet  current  revenues  as  they  come  in  may  be 
used  to  defray  such  expenses,  and  if  they  are  sufficient  for  that  pur- 
pose, then  no  debt  is  created. 

If  a  bond,  note,  or  other  obligation  is  executed,  then,  doubtless, 
a  debt  is  created,  for  such  things  constitute  evidences  of  indebted- 
ness, but  that  is  not  the  case  here.  So,  if  the  consideration  of  the 
contract  is  received  at  once,  instead  of  being  yielded  in  the  future  or 
at  intervals,  then  it  might  be  said  that  there  was  a  debt,  but  where 
^here  is  nothing  owing  until  after  the  thing  contracted  for  is  done  or 
furnished,  and  that  thing  is  a  part  of  the  necessary  yearly  expenses 
of  the  municipality,  there  will  be  no  debt,  if,  when  the  thing  is  done 
or  furnished  there  will  be  money  in  the  treasury,  yielded  by  current 
revenues,  sufficient  to  fully  pay  the  claim  without  encroaching  upon 
other  funds.  This  we  understand  to  be  the  case  made  by  the  answer, 
and  we  think  it  a  case  not  within  the  inhibition  contained  in  the 
constitutional  amendment. 

If  a  different  view  be  taken  from  thj^  which  we  maintain,  startling 
results  would  follow  in  the  application  of  the  principle  to  other  cases. 
Take,  for  instance,  a  merchant  having  a  large  number  of  clerks 
employed  for  a  year  each,  and  at  a  fixed  salary,  could  such  a  mer- 
chant in  making  out  his  tax-list  deduct  the  aggregate  amount  of  all 
the  salaries  computed  to  the  end  of  the  year,  on  the  ground  that  it 
constituted  an  indebtedness?  Take,  again,  the  same  supposed  case, 
and  would  any  one  say  that  the  merchant's  solvency  was  to  be  deter- 
mined by  taking  into  consideration  the  aggregate  of  the  salaries  that 
would  be  due  his  clerks  at  the  end  of  the  year?  Take,  for  another 
example,  the  case  of  a  private  corporation  actively  engaged  in  busi- 
ness, could  it  be  pushed  to  the  wall  on  the  ground  that  it  was  insol- 
vent, by  evidence  that  it  had  contracted  with  a  large  number  of 
men  for  a  year's  service,  and  that  the  aggregate  sum  due  at  the  end 
of  the  year  would  be  much  greater  than  the  value  of  its  property  at 
the  opening  of  the  year?  Take  still  another  example,  a  municipal 
corporation  —  and  here  there  need  be  no  supposition  —  with  its  officers 
(some  of  them  with  terms  of  several  years),  its  policemen  and  its 
firemen,  is  it  indebted  at  the  beginning  of  the  year,  for  the  grand 
aggregate  of  all  the  salaries  to  the  end  of  all  the  terms?  In  the  case 
of  the  merchant  and  of  the  private  corporation,  it  certainly  would  be 
held,  without  hesitation  or  doubt,  that  if  the  current  income  or  profit 
would  discharge  the  obligations  there  would  be  no  indebtedness ;  and 
this  must  be  true  of  municipal  corporations  in  cases  where  there  will 
l)c  money  in  the  treasury,  derived  from  current  revenues,  sufficient  to 
pay  for  services  rendered  or  things  furnislied,  as  part  of  the  current 
corporate  expenses,  when  the  services  are  rendered  or  tlie  things 
actually  furnished.     Expenses  of  sucii  a  character  should  be  deemed 


SPILMAN   V.   CITY   OF   PARKEESBURG. 


201 


incidental  expenses  of  the  corporate  business,  and  not  debts,  and  as 
Jong,  at  least,  as  the  current  revenues  will  pay  these  expenses  with- 
out taking  from  funds  devoted  to  other  purposes  by  command  of  the 
corporate  charter  what  properly  belongs  to  them,  there  is  no  indebted- 
ness within  the  meaning  of  the  Constitution. 

Judgment  reversed^  ivith  instructions  to  overrule  the  demurrer  to  the 
answer,  and  to  proceed  in  accordance  with  this  opinion. 


SPILMAN   V.    CITY   OF  PARKERSBURQ 


[Citations  of 


WSL-^CU 


1891.     35  West  Virginia,  605.^ 

J.  B.  Jackson  and  J.  A.  Hutchinson,  for 
counsel  omitted.] 

B.  M.  Ambler,  for  appellee. 

Holt,  J.     Article  10,  sections,  o^^lji?' Constitution  of  West  Vir- 
ginia, provides  that  "  woii€mpW,^jcil.y,  school  district  or  municipal 
corporation  shall^herea^r/^yalrowed  to  become  indebted   in   any 
manner  or  for  any  mwiJOse  t;o  anSmouut,  including  existing  indebted- 
ness, in  the  aggi>^ate  exceeding  five  per  centum  on  the  value  of  the 
taxable  property^hereinOto  be  ascertained  by  the  last  assessment  for 
state  andv  cMnty  t^^x^'^previous  to  the  incurring  of  such  indebted- 
ness>  nor^without  at  the  same  time  providing  for  the  collection  of  a 
diiyct/annual  tax,  sufficient  to  pay  annually  the  interest  on  such  debt 
an^?the  principal  thereof  within,  and  not  exceeding,  thirty-four  years ;  (u^f^^-^  ^^ 
provided,  that  no  such  debt  shall  be  contracted  under  this  section  ^UL<ijd3-Vj 
unless  all  questions  connected  with  the  same  shall  have  been  firsf* ^^q_^^^" 
submitted  to  a  vote  of  the  people,  and  have  received  three-fifths  of  ^^^i^^    %—  " 
all  the  votes  cast  for  and  against  the  same."     This  suit  involves  this  V-«JiK>-fc  JtS 
provision  of  the  state  constitution,  and  is  a  bill  in  equity,  filed  in  \I^\     - 
the  circuit  court  of  Wood  county  on  the  9th  day  of  April,  1891,  by  xr^-*-**- 

B.  D.  Spilman,  who  sues  on  behalf  of  himself  and  all  other  citizens,  ^"'^''^^JC^ 
residents  and  tax-payers  in  and  of  the  city  of  Parkersburg,  W.  Va.,  "SN"-*^''""''"*^-^ 
against  the  city  of  Parkersburg  and  others,  to  restrain  and  inhibit  rv^-**"-*^-*^^  ^V 
the  creation  by  the  city  of  a  debt  for  the  erection  of  an  electric  light  *■*  *-^  V> 
plant,  alleged  to  be  in  violation  of  the  above-mentioned  section  of  V'^-*'-<^^V-«^ 
the  state  constitution.  The  injunction  was  granted  on  May  25,  1891,  ^  (^xj^'^-eXK. 
until  further  order,  and  thereupon  defendants  gave  notice  of  motion  ^^  v/>/v-^i::^ 
to  be  made  on  June  22,  1891,  to  dissolve,  on  which  day  the  judge  in  Vv~-*>^^jfc«J 
vacation  heard  the  motion,  but  overruled  the  same,  refusing  to  dis-  ^^>J^  *^'>'>Ajl1 
solve  the  injunction,  and  from  this  order  defendants  below,  plaintiffs  '■~»'~^*-<v-o  >>-M 
in  error,  having  obtained  this  appeal.  '*'JC'sa-*-4.>^ia 

The  facts  are  as  follows:  The  total  valuation  of  the  taxable  prop-  V-Aj^<m."~0» 

erty  on  the   10th  day  of  November,  1890,   ascertained  by  the  last   ^^^  o-^-A 

1  Portions  of  opinion  omitted.  —  Ed.     '^^X*— "-'*'^^''^'"*— ^O^'-^'-X*  *V^  CX-ko 


202  SPILMAN   V.    CITY   OF   PAKKERSBUEG. 

assessment  in  the  city  for  state  and  county  taxes,  was  $3,818,120 
—  five  per  cent  of  which  is  $190,906.  The  then  existing  indebted- 
ness of  the  city  was  $190,000.  On  the  18th  day  of  March,  1891,  the 
Thomson-Houston  Electric  Company  entered  into  a  written  contract 
of  that  date,  whereby  the  electric  company  agreed  to  erect  and  install 
for  the  city  a  certain  electric  plant  in  accordance  with  specifications 
attached  and  made  part  of  the  contract,  for  which  the  city  agreed  to 
provide  a  suitable  site,  boiler  and  foundation  for  engine  and  dyna- 
mos, to  pay  all  taxes  on  such  apparatus  and  plant,  and  keep  the  same 
in  repair,  and  also  agreed  to  lease  from  the  electric  company  such 
plant,  furnished  for  street  lighting,  for  a  term  of  five  years  from  the 
completion  of  the  plant,  and  to  pay  at  the  end  of  each  three  months 
after  its  completion  —  that  is  to  say,  quarterly  —  the  sum  of  $1,625 
for  the  use  thereof,  except  that  each  succeeding  payment  was  to  be 
$18.75  less  than  the  preceding  payment;  and  at  the  expiration  of  the 
term  of  five  years  the  city  has  the  right  to  buy  the  same  at  the  price 
of  $1  —  plainly  a  contract  of  purchase  in  legal  effect;  in  fact  so  desig- 
nated twice  in  a  paper  made  part  of  the  contract.  No  question  con- 
nected with  this  transaction  was  submitted  to  the  people;  no  vote 
was  had  thereon.  In  addition,  there  were  in  November,  1890,  funds 
receivable  from  licenses,  etc.,  the  sum  of  $17,444.53. 

Blackstone  (vol.  3,  p.  154)  says:  "The  legal  acceptation  of  debt 
is  a  sum  of  money  due  by  certain  and  express  agreement."  Thjs  is 
given  in  connection  with  his  treatment  of  the  action  of  debt. 

In  the  constitution  it  means  any  debt  created  by  contract,  express 
or  implied;  any  voluntary  incurring  of  any  liability  to  pay  in  any 
manner  or  for  any  purpose,  when  the  given  limit  of  indebtedness  has 
been  reached.  It  may  be  a  debt  payable  in  the  future  as  well  as  one 
payable  presently;  one  payable  upon  some  contingency,  such  as  the 
delivery  of  property,  as  well  as  for  property  already  delivered. 
When  the  contingency  happens,  the  debt  becomes  fixed;  it  exists. 
It  only  differs  from  an  unqualified  promise  in  the  manner  in  which  it 
is  created.  And,  since  the  purpose  of  the  debt  is  expressly  excluded 
from  consideration,  it  can  make  no  difference  whether  the  debt  be  for 
necessary  current  expenses  or  for  something  else." 

I  do  not  deem  it  necessary  to  review  seriatim  the  many  cases  on 
the  subject,  but  rather,  with  their  help,  make  a  careful  analysis  of 
our  own  constitutional  provision  on  the  point. 

1.  What  kind  of  indebtedness  is  prohibited?  "If  a  man  have 
any  more  or  less  of  meaning  in  the  term  he  makes  use  of  than 
another,  he  does  not  talk  with  him  to  the  same  point."  By  the  term 
"  indebtedness,"  as  here  used,  is  meant  the  state  of  being  by  volun- 
tary obligation,  express  or  implied,  under  legal  liability  to  pay  in 
the  present  or  at  some  future  time  for  something  already  received,  or 
for  something  yet  to  be  furnished  or  rendered.  This  includes  every 
liind  of  indebtedness,  no  matter  in  what  manner  created,  or  volun- 


SPILMAN    V.    CITY   OF   PARKERSBURG.  203 

tarily  brought  about;  or  for  what  purpose,  whether  it  be  for  munic- 
ipal self-preservatiou  or  not;  whether  for  pure  air,  pure  water,  good 
light,  clean  and  convenient  and  safe  streets  and  sidewalks;  whether 
it  be  payable  now  or  hereafter,  payable  quarterly  or  annually,  or  at 
any  date  running  on  for  thirty-four  years;  whether  for  current  ex- 
penses or  fixed  and  definite  debts  or  charges;  whether  for  personal 
property  or  real  property,  leasehold  or  freehold.  It  is  none  the  less 
indebtedness,  created  in  some  manner,  and  for  some  purpose,  and  is 
within  the  purview  and  the  bar  of  the  constitution.  The  confusion 
as  to  "  current  expenses  "  grows  out  of  the  failure  to  give  due  weight 
to  another  part  of  section  8,  article  10. 

2.  Provision  for  payment.  The  city  shall  "at  the  same  time 
provide  for  the  collection  of  a  direct  annual  tax  sufficient  to  pay 
annually  the  interest  on  such  debt,  and  the  principal  thereof  within 
and  not  exceeding  thirty-four  years."  If  it  is  an  item  of  current 
expenses  or  any  thing  else  for  the  payment  of  which  provision  has 
already  been  made  by  levy  laid,  then  it  needs  no  other  provision  for 
its  payment,  and  is  not  within  the  letter  of  the  constitution ;  neither 
is  it  within  its  true  meaning,  for  a  draft  on  a  fund  already  in  hand, 
or  by  levy  already  made  and  provided,  meets  it  and  discharges  it,  so 
that  no  indebtedness  arises.  Thus  it  happens  that  the  mere  coinci- 
dence of  current  expenses  being  generally  met  and  discharged  by 
a  fund  in  hand  or  already  levied  for  is  apt  to  mislead  us  into  the 
view  that  indebtedness  to  pay  current  annual  expenses  is  not  within 
the  prohibition;  whereas,  as  we  have  seen,  it  is  as  absolutely  pro- 
hibited as  indebtedness  created  in  any  other  manner  or  for  any 
other  purpose.  This  clause  of  the  section  is  for  the  benefit  of  the 
creditor. 

3.  "  Shall  not  hereafter  be  allowed  to  become  indebted  in  any  man- 
ner or  for  any  purpose  to  an  amount,  including  existing  indebted- 
ness, in  the  aggregate  exceeding  five  per  centum  on  the  value  of  the 
taxable  property  therein,  to  be  ascertained  by  the  last  assessment  for 
state  and  county  taxes  previous  to  the  incurring  of  such  indebted- 
ness." This  provision  is  intended,  by  fixing  a  maximum  limit  in 
any  and  all  events,  to  guard  the  people  of  the  town  frgm  their  own 
thoughtlessness  or  recklessness  as  to  the  burden  put  upon  others,  the 
large  tax-payers  being  generally  in  the  minority.  It  is  intended  to 
protect  posterity  by  its  limit  as  to  time,  and  the  tax-payers  by  its 
limit  as  to  quantity'. 

4.  "  Not  exceeding  five  per  centum  on  the  value  of  the  taxable 
property  therein,  to  be  ascertained  by  the  last  assessment  for  state 
and  county  taxes  previous  to  the  incurring  of  such  indebtedness." 
This  gives  us  a  precise  and  definite  standard  by  which  to  measure 
and  ascertain  the  extent  to  which  the  indebtedness  may  go  and  we 
see  that  it  does  not  include  tithables,  nor  licenses,  nor  market  fees, 
nor  wharfage,  nor  police  court  fines,  nor  bridge  tax.  etc. 

5.  "  Provided,  that  no  debt  shall  be  contracted  under  this  section, 


204  SPILMA.N   V.   CITY   OF   PARKERSBURG. 

unless  all  questions  connected  with  the  same  shall  have  been  first  sub- 
mitted to  a  vote  of  the  people,  and  have  received  three-fifths  of  all 
the  votes  cast  for  and  against  the  same,"  plainly  intending  that  no 
such  indebtedness  should  be  created  in  a  corner,  and  without  the 
knowledge  and  sanction  of  the  tax-paying  voters.  It  should  be  pub- 
lic, and  run  the  gauntlet  of  full  and  free  discussion.  The  people 
must  be  in  earnest  about  this  matter,  or  they  would  not  by  their 
organic  law  have  barred  out  this  debt-creating  power  with  a  triple 
hedge  of  safeguards.  Its  wisdom  is  unquestioned,  and  it  has  found 
or  is  rapidly  finding  its  way  into  all  state  constitutions.  It  is  plainly 
remedial ;  therefore  the  courts  should  uphold  it  with  a  steady  hand, 
and  construe  and  apply  it  in  the  advancement  of  the  benefit  sought 
for,  and  in  suppression  of  the  evil  intended  to  be  suppressed,  and  not 
give  up  the  citadel  to  the  first  hard  case,  with  bad  law  in  its  train, 
that  demands  its  surrender.  When  we  apply  this  section,  thus  read 
and  construed,  to  the  facts  of  the  case  in  hand,  we  find  this  electric 
contract  unable  to  penetrate  even  the  outer  wall. 

1.  What  matters  it  what  we  call  the  thing  contracted  for,  or  thss 
contract  itself  —  lease,  purchase  or  executory  contract  to  lease  or 
purchase  —  the  thing  thus  created  is  a  debt.  It  is  executory;  it  may 
never  be  carried  out.  None  the  less  it  is  a  present  binding  agree- 
ment for  the  creation  of  a  prospective  debt. 

2.  The  five  per  cent  limit  was  already  reached  ■ —  it  may  lack  a 
trifle,  but  virtually  reached.  The  maximum  measure  is  full.  There 
is  room  for  no  more  indebtedness.  We  are  not  permitted  to  piece  on 
to  the  last  aggregate  tax  value  the  $17,000  or  $20,000  derived  from 
city  licenses,  police  fines,  etc.,  in  order  to  broaden  the  five  per  cent 
fund  by  enlarging  the  basis  from  which  it  is  calculated,  so  as  to  make 
room  for  another  debt.  The  constitution  does  not  say  so,  but  by 
what  it  does  say  excludes  it.  Why  not  take  this  fund,  and  buy  the 
electric  apparatus  ?  Then  there  would  be  no  debt.  Not  being  capable 
of  being  used  to  enlarge  the  basis  of  calculation  at  the  one  end, 
neither  can  it  be  used  to  belittle  the  debt  at  the  other,  to  make  it 
insignificant,  compared  with  the  means  of  payment.  To  say  that  it 
is  sufficient  tp  pay  with  will  not  do.  It  must  be  applied ;  and  when 
that  is  done  the  dispute  is  ended. 

3.  The  people  have  had  no  say  in  the  matter,  they  have  not  voted, 
nor  had  an  opportunity  to  vote.  The  right  of  the  city  to  create 
Indebtedness  is  exhausted.     The  Indebtedness  amounts  to  $190,000:^ 

jhe^maximum  limit  is  $190,850.50  —  leaving  a  margin  of  $850.50. 

4.  On  behalf  of  the  city  authorities  it  is  urged  with  a  good  deal  of 
force  that  this  is  a  contract  for  light  —  one  of  the  public  necessities 
of  city  life;  that  to  provide  it  is  one  of  the  urgent  items  of  current 
expense;  that  a  modern  plant  cannot  be  obtained  by  yearly  contract; 
that  it  is  so  costly  that  no  one  will  take  the  risk  of  supplying  it  in  that 
way,  but  that  the  only  obtainable  terms  are  for  a  term  of  years,  say 
five  at  the  least,  with  quarterly  or  annual  payments;  and  that  as  the 


SPILMAN   V.    CITY   OF   PARKERSBURG,  205 

rent  or  installmeuts  of  purchase-money  fall  due  only  as  the  compen- 
sation has  been  earned,  the  funds  are  by  that  time  in  the  treasury  with 
which  to  pay.  All  this  sounds  plausible  enough,  but  the  trouble  with 
it  is  no  levy  has  been  made  to  meet  it ;  no  provision  has  been  made  or 
can  be  made  for  a  direct  annual  tax  sufficient  to  pay  it,  because  the  in- 
debtedness already  existing  is  up  to  the  maximum  allowed  by  law  ;  and 
the  contract  does  not  restrict  its  source  of  payment  to  current  funds 
derivable  from  sources  other  than  taxation,  such  as  licenses,  police 
fines,  etc.,  if  that  would  avoid  the  trouble  (as  to  which  we  express 
no  opinion).  That  may  be  one  of  the  sources  of  revenue  already 
set  apart  or  relied  on  to  pay  interest  and  principal  of  the  $190,000 
of  cit}-  indebtedness  alreadj-  existing.  The  city  is  rapidly  increasing 
in  taxable  wealth,  no  doubt,  but  the  constitution  requires  us  to  take 
as  the  basis  the  last  assessment,  and  that  is  before  us  among  the 
facts  of  the  case,  and  we  are  not  allowed  to  look  ahead  to  some 
conjectural  assessment  not  yet  made. 

I  have  examined  all  these  cases  of  "  necessar}'  current  expenses," 
as  they  are  called,  to  which  our  attention  has  been  directed ;  examined 
some  of  them  in  a  perfunctory  manner  it  is  true,  for  no  man  nowadays 
can  deliberatel3'  read  every  thing.     [After  citing  a  large  number  of  au- 
thorities.]    I  need  not  stop  to  compare  and  distinguish ;  that  has  been 
well  done  in  1  Dill.  Mun.  Corp.  (4th  Ed.),  §  133  et  seq.,  and  notes.    And 
I  have  been  led  to  the  conclusion  that  the  safe  and  sound  construc- 
tion is  laid  down  in  the  much-considered  case  (three  times  before  the 
court)  of  Prince  v.  City  of  Quincy,   128  111.  443  (1889);    21   N.  E. 
Rep.  768.     "  The  effect  of  this  constitutional  inhibition  is  to  require" 
cities  indebtecf  to  the  limit  fixed  b3'  the  constitution  to  carry  on  their^ 
corporate   operations  while  so  indebted  upon   the   cash   system,   and 
jot  upon  credit  to  any  extent  or  for  any  purpose  ; "  that  is,  payment 
must  be  provided  for  by  levy  laid,  as  distinguished  from   levy  here- 
after intended  to  be  laid.     "  If  an  indebtedness  of  a  city  for  current'N^''^'^^'*"^ 
expenses  and  supplying  water  is  forbidden  as  being  in  excess  ofTEe/ 
constitntionaniniit,  tTie  contract  upon  wMchTf  arose,  thou gKiti  itself  7 
execiitofy,  and  creating  only  a,  contingent  liability,  is  also  forbiddenf 
Prohibition   of  the   end   is   prohibition   of  the   direct,   designed   and 
appropriate  means."     This  is  the  true  construction.     Anj'  other  would  1 
deprive   these   constitutional   limitations   of  the   force   and   efficienc}'  ' 
indispensabh'  required  to  prevent  or  cure  the  evil  aimed  at.     To  this 
conclusion  the  learned  judge  of  the  circuit  court  who  entered  the  order 
complained  of  was  brought,  no  doubt,  after    a  careful  consideration 
of  all  the  authorities.     I  regard  his  conclusion  as  the  onh'  safe  and 
sound  one.     We  are  working  in  constitutional  harness  in  the  piping 
times  of  peace,  and  do  not  feel  called  on  to  heed  the  exacting  imperi- 
ousness  of  these  higher  laws  of  municipal  self-preservation  ;    but  are 
forced  to  say  what  he  has  in  effect  said  :  "  The  cit}'  fathers,  when  the 
constitutional  limit   of  voluntary  indebtedness,   as  in    this  case,   haf 
been  reached,  must  for  the  time  cast  about  in  search  of  the  philoso 


206  EAUCH   V.   CHAPMAN. 

pher's  stone,  '  pay  as  you  go.' "  Therefore,  the  order  of  the  circuit 
court  of  Wood  county,  entered  by  the  judge  in  vacation  on  the 
22d  day  of  June,  1891,  overruling  defendants'  motion  to  dissolve  the 
injunction  awarded  on  the  25th  day  of  May,  1891,  is  affirmed 


RAUCH   V.  CHAPMAN. 

1897.     16  Washington,  568.» 

Appeal  from  superior  court,  Klickitat  count}'. 
W.  J^.  Preshy  and  Huntington  &  Wilson,  for  appellant. 
C.  H.  Spalding,  for  respondent. 

Reavis,  J.  Suit  in  equity,  by  a  taxpayer  of  Klickitat  county, 
against  the  county  treasurer  to  enjoin  the  pa3'ment  of  certain  county 
warrants,  on  the  ground  that  they  were  issued  after  the  constitutional 
limitation  of  count}'  indebtedness  had  been  incurred.  The  complaint, 
after  other  necessary  allegations,  set  forth  that  the  indebtedness  of 
the  county  was  more  than  one  and  one-half  per  centum  of  the  taxable 
property  therein,  and  no  validation  by  vote  of  the  electors  had  been 
made  of  any  additional  indebtedness.  The  answer  stated,  among 
other  defenses  to  the  suit,  that  the  warrants  in  controversy  were 
compulsory  obligations  imposed  upon  the  county  by  the  constitution 
and  laws  of  the  state  ;  and  specified  some  of  the  purposes  for  which 
the  warrants  were  issued,  among  which  were  services  for  jurors  in 
(i_K_x>-the  superior  court,  witness  fees  in  criminal  proceedings,  and  sheriff's 
Ij^Lk^  f\  expenses  in  serving  criminal  process,  and  expenses  incurred  at  the 
^  «  general  state  election.  Plaintiff  demurred  to  this  affirmative  defense, 
which  demurrer  was  sustained  by  the  superior  court,  and  the  court 
thereupon,  among  other  facts,  found  the  following,  which  are  material 
to  the  consideration  of  the  cause  by  this  court : 
>/  OlUj  ^  "  7th.  That  the  total  indebtedness  of  said  county  on  the  9th  day  of 
\ys.,^jt;,  March,  1893,  and  during  all  of  the  time  of  the  issue  of  the  warrants 
now  called  was  $85,441.92,  and  greatl}^  exceeded  the  constitutional 
^_iji_»  limit  of  indebtedness  for  said  count}-,  after  deducting  therefrom  the 
i^  cash  in  the  treasury  and  all  taxes  levied  and  uncollected. 

■^  "  8th.    That  the  warrants   now  called  by  the  count}'  treasurer  are 

.  I  k^  the  debts  contracted  after  said  9th  day  of  March,  1893,  and  were 
^^^issued  between  the  2nd  day  of  April,  1893,  and  the  26th  day  of  July, 
^^'^^^  1893,  during  all  of  which  time  said  indebtedness  of  $85,441.92  was 
VcC^jr^.  outstanding,  and  all  of  said  warrants  now  called  were  and  are  in 
LftJdi^r^^  excess  of  the  constitutional  limit  of  indebtedness  of  said  county  and 
\>uv>^  v/ere  issued  without  the  assent  of  the  voters  of  said  county  first  had 
L)Lk*^  and  obtained  at  an  election  held  for  that  purpose,  and  they  have  not 
<^^  "t^vjL  been  validated  by  any  vote  of  the  electors  of  said  county  since  their 
»l<t  \8sue." 

*  Portions  of  opinion  omitted.  —  Ed. 


^^^-<sSk3-«a^ 


RAUCH  V.    CHAPMAN.  207 

Judgment  was  rendered  against  the  defendant  and  a  permanent 
injunction  issued  against  the  payment  of  the  warrants  designated  in 
tlie  complaint.     The  defendant  appeals. 

1.  Respondent  maintains  here  that  the  payment  of  the  warrants  is 
inhibited  by  §  6  of  art.  8  of  the  constitution  of  this  state,  of  which 
the  part  material  for  consideration  is  as  follows:  "No  county,  city, 
town,  school  district  or  other  municipal  corporation  shall  for  any 
purpose  become  indebted  in  any  manner  to  an  amount  exceeding  one 
and  one-half  per  centum  of  the  taxable  property  in  such  county,  etc., 
without  the  assent  of  three-fifths  of  the  voters  therein  voting  at  an 
election  for  that  purpose.  .  .  .  Provided,  that  no  part  of  the  indebted- 
ness allowed  in  this  section  shall  be  incurred  for  any  purpose  other 
than  strictly  county,  city,  town,  school  district  or  other  municipal 
purposes ; "  and  with  the  further  proviso  that  any  city  or  town  shall 
be  allowed  to  become  indebted  to  a  larger  amount,  not  exceeding  five 
per  centum  additional  for  supplying  such  city  or  town  with  water, 
light  and  sewers,  when  the  works  for  supplying  the  same  shall  be 
owned  and  controlled  by  the  municipality. 

When  the  constitution  of  Washington  was  adopted  by  the  people 
of  the  newly-born  state,  the  various  county  governments  in  the  terri- 
tory were  recognizefl  and  their  organizations  and  powers  in  a  great 
measure  continued.  A  large  body  of  laws  applicable  to  the  new 
state,  and  which  the  people  had  for  a  long  time  been  accustomed  to, 
were  found  and  continued  in  force.  At  this  time  some  of  the  coun- 
ties in  the  state  were  already  indebted  to  an  amount  equal  to  the 
constitutional  limitation  of  one  and  one-half  per  centum.  The  state 
itself  inherited  from  its  territorial  form  liabilities  which  very  nearly 
equalled  the  limitation  on  state  indebtedness  prescribed  in  §  1,  art.  8 
of  the  constitution.  The  several  counties,  in  addition  to  their  organ- 
ization for  local  purposes,  and  having  conferred  upon  them  the  power 
to  control  and  build  county  roads  and  bridges,  erect  public  buildings 
for  county  purposes,  and  do  many  other  things  connected  with  the 
county  as  a  corporation,  also  had  imposed  upon  them  certain  duties 
by  the  state,  and  became  governmental  agencies,  in  the  territory 
comprised  in  the  county,  for  the  state.  Section  11  of  art.  11  author- 
izes any  county,  city,  town  or  township  to  make  and  enforce  within 
its  limits  all  such  local  police,  sanitary  and  other  regulations  as  are 
not  in  conflict  with  general  laws.  Section  12  of  the  same  article 
provides : 

"  The  legislature  shall  have  no  power  to  impose  taxes  upon  coun- 
ties ...  or  upon  the  inhabitants  or  property  thereof,  for  county 
.  .  .  purposes,  but  may  by  general  laws  vest  in  the  corporate  author- 
ities thereof  the  power  to  assess  and  collect  taxes  for  such  purposes." 

The  duty  has  been  imposed  upon  the  several  counties  in  this  state 
to  provide  for  and  pay  certain  necessary  expenses  for  the  enforce- 
ment of  the  criminal  laws  of  the  state  and  for  expenses  incurred  at 


208  EAUCH   V.   CHAPMAN. 

the  regular  biennial  state  elections  at  which  county  and  state  officers 
are  elected,  and  in  carrying  out  other  functions  of  the  state;  and 
also  to  make  expenditures  necessary  for  the  existence  of  the  county 
organization. 

Section  8,  art.  6  of  the  constitution,  provides  for  biennial  elec- 
tions. Section  5,  art.  11,  also  provides  for  the  election  in  the  several 
counties  of  boards  of  county  commissioners,  sheriffs,  county  clerks, 
treasurers,  prosecuting  attorneys,  and  other  county  officers  as  public 
convenience  may  require,  and  devolves  upon  the  legislature  the  power 
to  prescribe  their  duties  and  fix  their  terms  of  office,  and  to  regulate 
the  compensation  of  all  such  officers  in  proportion  to  their  duties, 
and  that  for  that  purpose  the  legislature  may  classify  the  counties  by 
population. 

2.  The  objects  of  government  have  usually  become  multiplied  with 
the  development  of  complex  and  artificial  conditions  of  society. 
There  is  much  controversy  at, times  among  our  statesmen  as  to  the 
necessary  and  proper  limitations  upon  the  powers  of  government, 
both  state  and  municipal,  but  all  are  agreed  that  certain  necessary 
fundamental  functions  of  government  must  always  be  expressed  and 
exercised.  The  protection  of  life,  liberty  and  property,  the  conserva- 
tion of  peace  and  good  order  in  the  state,  cannot  remain  in  abeyance. 
These  functions  of  government  are  elementary  and  indestructible. 
The  constitutional  convention  which  framed,  and  the  sovereign  people 
who  adopted,  a  republican  form  of  government  for  the  state  of 
Washington,  had  these  known  principles  in  mind.  Section  10  of 
the  Declaration  of  Rights  prescribes:  "Justice  in  all  cases  shall  be 
administered  openly  and  without  unnecessary  delay;"  and  in  §  22  it 
is  declared:  "In  criminal  prosecutions  the  accused  shall  have  the 
right  to  .  .  .  have  compulsory  process  to  compel  the  attendance  of 
witnesses  in  his  own  behalf,  have  a  speedy  public  trial  by  an 
impartial  jury  of  the  county  in  which  the  offense  is  alleged  to  have 
been  committed.  ..."  Provision  is  also  made  in  the  constitution 
for  the  organization  and  maintenance  of  the  county  government  and, 
as  we  have  seen,  its  administration  is  ancillary  to  that  of  the  state. 
All  these  provisions  of  the  organic  law  are  alike  declared  to  be  man- 
datory. It  would  make  these  various  provisions  of  the  constitution 
contradictory  and  render  some  of  them  nugatory,  if  a  construction 
were  placed  upon  the  limitation  of  county  indebtedness  which  would 
destroy  the  efficiency  of  the  agencies  established  by  the  constitution 
to  carry  out  the  recognized  and  essential  powers  of  government.  It 
cannot  be  conceived  that  the  people  who  framed  and  adopted  the  con- 
stitution had  such  consequences  in  view.  The  judicial  power  was 
vested  in  the  courts;  the  law  must  be  administered  through  them; 
the  jury  is  an  essential  part  of  the  judicial  procedure;  justice  must 
be  adininistered  without  unnecessary  delay  between  the  citizens  of 
the  state ;  persons  accused  of  crimes  must  have  a  speedy  and  impar* 


RAUCH  V.   CHAPMAN.  209 

dal  jury  trial;  compulsory  process  must  be  served  by  the  sheriff, 
witnesses  are  compelled  to  appear.  The  regulation  of  much  of  this 
procedure,  and  the  compensation  of  jurors  and  witnesses,  as  well  as 
of  officers,  in  the  counties,  is  vested  in  legislative  discretion.  Sec- 
tion 1  of  art.  9  of  the  constitution  declares:  "It  is  the  paramount 
duty  of  the  state  to  make  ample  provision  for  the  education  of  all 
children  residing  within  its  borders;"  and  §  2,  same  article:  "the 
legislature  shall  provide  for  a  general  and  uniform  system  of  public 
schools."  Our  constitution  seems  to  have  added  to  the  proper  and 
essential  functions  of  free  government  the  maintenance  of  public 
schools. 

3.  The  construction  by  some  of  the  other  courts  of  similar  consti- 
tutional provisions  may  here  be  examined.  In  Grant  County  t^.  Lake 
County,  17  Ore.  453  (21  Pac.  447),  the  court,  referring  to  the  consti- 
tution of  Oregon,  said: 

"  The  constitutional  inhibition  that  no  county  shall  create  any 
debts  or  liabilities  which  shall,  singly  or  in  the  aggregate,  exceed 
the  sum  of  five  thousand  dollars,  except  to  suppress  insurrection  or 
repel  invasion,  does  not  imply  that  all  debts  and  liabilities  against  a 
county  over  and  above  that  sum  are  necessarily  obnoxious  to  that 
provision.  To  justify  the  court  in  finding  the  said  conclusion  of 
law,  it  should  have  found  that  the  county  created  the  indebtedness. 
Counties  do  not  create  all  the  debts  and  liabilities  which  they  are 
under;  ordinarily  such  debts  and  liabilities  are  imposed  upon  them 
by  law.  A  county  is  mainly  a  mere  agency  of  the  state  government 
—  a  function  through  which  the  state  administers  its  governmental 
affairs  —  and  it  has  but  little  option  in  the  creation  of  debts  and  lia- 
bilities against  it.  It  must  pay  the  salaries  of  its  officers,  the 
expenses  incurred  in  holding  courts  within  and  for  it,  and  various 
and  many  other  expenses  the  law  charges  upon  it,  and  which  it  is 
powerless  to  prevent.  Debts  and  liabilities  arising  out  of  such  mat- 
ters, whatever  sum  they  may  amount  to,  cannot  in  reason  be  said  to 
have  been  created  in  violation  of  the  provision  of  the  constitution 
referred  to,  as  they  are  really  created  by  the  general  laws  of  the 
state,  in  the  administration  of  its  governmental  affairs.  Said  pro- 
vision of  the  constitution,  as  I  view  it,  only  applies  to  debts  and 
liabilities  which  a  county,  in  its  corporate  character,  and  as  an  arti- 
ficial person,  voluntarily  creates." 

This  decision  has  been  followed  by  the  same  court  in  Worynington 
r.  Pierce,  22  Ore.  606  (30  Pac.  450) ;  Burnett  v.  Markley,  23  Ore. 
436  (31  Pac.  1050),  and  Dorothy  v.  Pierce,  27  Ore.  373  (41  Pac.  668). 

The  supreme  court  of  California,  in  Lewis  v.  Widber,  99  Cal.  412 
(33  Pac.  1128),  observes: 

"  The  respondent  contends  .  .  .  that  he  should  not  pay  petitioner's 
salary  on  account  of  §  18  of  art.  XI  of  the  state  constitution,  which 
reads  as  follows:  '  No  county,  city,  town,  township,  board  of  educa- 
tion, or  school  district,  shall  incur  any  indebtedness  or  liability  in 

14 


210 


BARNARD   V.    KTSTOX    COUNTY. 


any  manner,  or  for  any  purpose,  exceeding  any  year  the  income  and 

revenue  provided  for  it  for  such  year,  without  the  assent  of  two-thirds 

of  the  qualified  voters,'  etc.     It  is  quite  apparent,  however,  thatthis 

C  clause  of  the  constitution  refers  only  to  an  indebtedness  or  liability 

J  which  one  of   the  municipal   bodies   mentioned  has  itself  incurred, 


that  is,  an  indebtedness  which  the  municipality  has  contracted,  or  a 


liability  resulting,  in  whole  or  in  part,  from  some  act  or  conduct  of 
.such  municipality.  ISuch  is  the  plain  meaning  of  the  language  used. 
^The  clear  intent  expressed  in  the  clause  was  to  limit  and  restrict  the 
power  of  the  municipality  as  to  any  indebtedness  or  liability  which 
it  has  discretion  to  incur  or  not  to  incur.  But  the  stated  salary  of 
a  public  officer  fixed  by  statute  is  a  matter  over  which  the  munici- 
pality has  no  control,  and  with  respect  to  which  it  has  no  discretion: 
and  the  payment  of  his  salary  is  a  liability  established  by  the  legis- 
lature at  the  date  of  the  creation  of  the  office.  It,  therefore,  is  not 
an  indebtedness  or  liability  incurred  bv  the  munieipality  wilhin  tlip 
meaning  of  said  clause  of  the  constitution." 

[After  citing  various  authorities,  some  of  which  are  in  conflict 
with  the  foregoing  cases.] 

We  are  constrained  to  rule  that  the  constitutional  limitation  of 
county  indebtedness  in  §  6  of  article  8  of  our  constitution,  does  not 
include  those  necessary  expenditures  made  mandatory  in  the  consti- 
tution and  provided  for  by  the  legislature  of  the  state,  and  imposed 
upon  the  county;  that  the  payment  of  these  is  a  prior  obligation,  and 
other  liabilities  incurred  by  the  county  are  subject  and  inferior  to 
these  primary  obligations  which  must  of  necessity  always  continue. 

The  cause  is  reversed  and  remanded  to  the  superior  court  of 
Klickitat  county,  with  instructions  to  proceed  in  conformity  to  the 
views  expressed  in  this  opinion. 

Scott,  C.  J.,  and  Anders,  Dunbar  and  Gordon,  JJ.,  concur. 


^,      .  BARNARD   v.    KNOX   COUNTY. 

'"%-       <u&-o^t       '^  ^®^^*     ^(^''>  Missouri,  ^^2?- 

J-A  \o-^       Appeal  from  Knox  Circuit  Court. 
V«>--»J'--A.      IT.  M.  Pollard^  for  appellant. 

^--JUa-A.^  Charles  D.  Steivart  and  William  Clancy,  for  respondent, 
n.  tfi^xxV-  Black,  J.  This  is  a  suit  upon  a  duly  protested  warrant  issued 
-  '^-'^''^^  by  the  county  court  of  Knox  county,  to  George  D.  Barnard,  dated 
SIj^aA^,*  the  seventh  day  of  May,  1885,  for  S83.90,  payable  "  out  of  any  money 
"^^*^*^  in  the  treasury  appropriated  for  the  contingent  fund."  Barnard 
>»~?^|^'^ 'assigned  the  warrant  to  the  plaintiff  corporation. 
^^2^1^  Tne  defense   is  that  the  debt,  for  which  the  warrant  was   issued, 

^  ^"^^T'"'^:^'    ^    ^  ^5?r*^^i  Arguments  omitted.  — En.  ,^     ^    - 


V>a3L 


V-N-i    U.S. 


r^-^r^* 


^Av^ 


BARNARD  V.   KNOX  COUNTY.  211 

was  created  after  the  county  court  had  issued  warrants  in  excess  of 
the  revenue  for  1885.  In  anticipation  of  this  defense,  it  is  alleged 
in  the  petition  that  though  the  county  court  had  issued  warrants  in 
excess  of  the  total  revenue  for  that  year,  still  the  plaintiff's  debt 
was  created  by  law,  and  not  by  the  act  of  the  county  court,  and  that 
the  county  debts  for  that  year  created  by  law  were  less  than  the  county 
revenue  for  the  same  year. 

The  case  was  tried  on  the  following  agreed  facts:  "  That,  on  the 
seventh  day  of  May,  1885,  the  clerk  of  the  county  court  of  Knox 
county,  Missouri,  bought  from  Geo.  D.  Barnard  certain  books  and 
stationery  for  S83.90;  that  said  books  and  stationery  were  suitable 
and  necessary  for  the  use  of  said  clerk  in  his  said  official  capacity; 
that  thereupon  said  Barnard  presented  said  bill,  for  said  books  and 
stationery,  to  the  county  court  of  said  county,  which  said  court 
audited  and  allowed  said  bill,  and  issued  the  warrant  filed  herein; 
.  .  .  that  there  is  no  money  in  defendant's  treasury  now  to  pay  the 
same ;  that,  at  the  time  of  issuing  said  warrant,  the  said  county  court 
h;id  issued  warrants  in  excess  of  the  total  revenue  of  said  county  for 
the  year  1885,  raised  by  a  levy  of  fifty  cents  on  the  hundred  dollars, 
and  from  licenses  and  other  sources;  but  excluding  the  warrants 
issued  during  the  said  year  for  support  of  paupers,  and  roads,  and 
bridges,  the  remainder  did  not  exceed  such  fifty  cents  on  the  hundred 
dollars;  .  .  .  that  no  vote  of  the  people  of  the  county,  on  the  ques- 
tion of  paying  this  warrant,  or  the  creation  of  the  debt  evidenced 
thereby,  has  ever  been  had.  The  annual  revenue  of  the  county,  to 
the  extent  of  fifty  cents  on  the  one-huudred-dollar  valuation,  is  now 
entirely  consumed  by  the  ordinary  annual  expenses  of  the  county 
government." 

The  provisions  of  the  constitution  to  be  considered  in  the  disposi- 
tion of  this  case  are  found  in  sections  11  and  12,  of  article  10.  The 
first  provides;  "  For  county  purposes  the  annual  rate  on  property, 
in  counties  having  86,000,000  or  less,  shall  not  in  the  aggregate 
exceed  fifty  cents  on  the  one-hundred-dollar  valuation."  The  same 
section  fixes  the  maximum  annual  rate  of  taxes  for  city  and  town 
purposes,  and  for  school  purposes,  and  contains  these  exceptions: 
First.  The  annual  rate  for  school  purposes  may  be  increased  to  a 
designated  amount  by  a  majority  vote  of  the  taxpayers.  Second.  The 
rate  may  be  increased  by  a  two-thirds  vote  for  the  purpose  of  erecting 
public  buildings.  The  rate  allowed  to  each  county  is  to  be  ascer- 
tained by  the  amount  of  taxable  property  therein,  according  to  the 
last  assessment.  "  Said  restrictions  as  to  rates  shall  apply  to  taxes 
of  every  kind  and  description,  whether  general  or  special,  except 
taxes  lo  pay  valid  indebtedness  now  existing  or  bonds  which  may 
be  issued  in  renewal  of  such  indebtedness." 

Section  12  declares:  "  No  county  .  .  .  shall  be  allowed  to  become 
indebted  in  any  manner,  or  for  any  purpose,  to  an  amount  exceeding 
in  any  year  the  income  and  revenue  provided  for  such  year,  without 


212 


BAENAED   V.   KNOX  COUNTY. 


the  assent  of  two-thirds  of  the  voters  thereof,  voting  at  an  election 
to  be  held  for  that  purpose;  nor  in  cases  requiring  such  assent  shall 
any  indebtedness  be  allowed  to  be  incurred  to  an  amount  includ- 
ing existing  indebtedness,  in  the  aggregate,  exceeding  five  per  centum 
on  the  value  of  the  taxable  property  therein,"  etc. 

The  statute  makes  it  the  duty  of  the  county  court  at  its  May  term, 
in  each  year,  to  divide  the  revenue  collected,  and  to  be  collected,  into 
five  designated  and  described  funds,  one  of  which  is  a  contingent 
fund  not  to  exceed  one-fifth  of  the  total  revenue  of  the  county  for 
county  purposes  for  any  one  year;  and  each  fund  is  declared  to  be 
a  sacred  fund  for  the  purpose  for  which  it  is  designated.  R.  S.  1879, 
sees.  6818,  6819. 

In  1875  and  prior  thereto,  many  of  the  counties  and  cities  in  this 
state  were  burdened  with  debts,  because  of  bonds  issued  in  aid  of 
railroads,  some  of  which  were  never  built,  and  on  account  of  extrav- 
agance, frauds  and  defalcations  of  officials.  To  put  an  end  to  this 
state  of  affairs,  the  constitution  adopted  in  that  year  denied  to  any 
county  or  city  the  right  to  thereafter  take  stock  in,  or  loan  its  credit 
to,  any  railroad  company  or  other  corporations;  and,  by  the  two 
sections  before  mentioned,  sought  to  bring  the  administration  of 
county  affairs  to  a  cash  basis.  As  said  in  Book  v.  Earl,  87  Mo.  246, 
the  evident  purpose  of  the  framers  of  the  constitution  and  the  people 
in  adopting  it  was  to  abolish,  in  the  administration  of  county  and 
municipal  government,  the  credit  system,  and  establish  the  cash  sys- 
tem by  limiting  the  amount  of  tax  which  might  be  imposed  by  a 
county  for  county  purposes,  and  by  limiting  the  expenditures  in  any 
given  year  to  the  amount  of  revenue  which  such  tax  would  bring 
into  the  treasury. 

We  do  not  understand  counsel  for  the  appellant  to  dispute  these 
propositions;  but  the  claim  is  made  and  pressed  with  much  vigor, 
that  section  12  does  not  include  debts  like  that  for  which  the  warrant 
in  question  was  given.  The  line  of  argument  is  this:  As  the  statute 
makes  it  the  duty  of  the  county  clerk  to  provide  suitable  books  and' 
stationery  for  his  office  (R.  S.  1879,  sec.  623),  a  debt  created  for 
such  a  purpose  is  not  one  incurred  or  created  by  the  county  court, 
but  is  a  debt  created  by  law,  aud  that  such  debts  are  not  within  the 
prohibition.  Authorities  are  cited  which  give  support  to  such  a  dis- 
"TTnction.  Grant  Co.  v.  Lake  Co.,  17  Or.  453;  Barnard  &  Co.  v. 
Knox  Co.,  37  Fed.  Rep.  563,  and  Rollins  v.  Lake  Co.,  34  Fed.  Rep. 
845.  The  case  last  cited,  it  may  be  observed,  was  reversed  by  the 
supreme  court  of  the  United  States.     130  U.  S.  662. 

On  the  other  hand  the  constitution  of  Colorado  contains  this  pro- 
vision: "And  the  aggregate  amount  of  indebtedness  of  any  county 
for  all  purposes,  exclusive  of  debts  contracted  before  the  adoption 
of  this  constitution,  shall  not  at  any  time  exceed  twice  the  amount 
above  limited,  unless,"  etc.  The  supreme  court  of  that  state  said, 
when  speaking  of  this  clause:  "  The  limitation  being  applicable  to 


BARNAKD  V.    KNOX  COUNTY.  213 

all  debts,  irrespective  of  their  form,  it  follows  that  in  determining 
the  amount  of  county  indebtedness  county  warrants  are  to  be  taken 
into  account  and  any  warrant  which  increases  the  indebtedness  over 
and  beyond  the  limit  fixed  is  in  violation  of  the  constitutional  pro- 
vision, and  void."     The  People  ex  rel.  v.  May^  9  Col.  80-98. 

The  circuit  court  of  the  United  States  in  Rollins  v.  Lake  Co., 
supra,  when  having  under  consideration  the  clause  of  the  Colorado 
constitution  before  quoted,  held  that  warrants,  issued  for  fees  of 
witnesses,  jurors,  constables  and  sheriff,  were  not  within  the  pro- 
hibition, because  issued  in  payment  of  compulsory  obligations;  and, 
hence,  it  was  no  defense  in  an  action  upon  such  warrants  that  at  the 
time  they  were  issued  the  limit  fixed  by  the  constitution  had  been 
reached. 

The  supreme  court  of  the  United  States  when  speaking  upon  this 
question  in  the  same  case  said:  "  Neither  can  we  assent  to  the  prop- 
osition of  the  court  below  that  there  is,  as  to  this  case,  a  difference 
between  indebtedness  incurred  by  contracts  of  the  county  and  that 
form  of  debt  denominated  '  compulsory  obligations.'  The  compul- 
elon  was  imposed  by  the  legislature  of  the  state,  even  if  it  can  be 
said  correctly  that  the  compulsion  was  to  incur  debt;  and  the  legisla-  • 
ture  could  no  more  impose  it  than  the  county  could  voluntarily  assume 
it,  as  against  the  disability  of  a  constitutional  prohibition.  Nor  does 
the  fact  that  the  constitution  provided  for  certain  county  officers,  and 
authorized  the  legislature  to  fix  their  compensation  and  that  of  other 
officials,  affect  the  question.  ...  In  short  we  conclude  that  article  6 
aforesaid  is  a  limitation  upon  the  power  of  the  county  to  contract  any 
and  all  indebtedness  including  all  such  as  that  sued  upon  in  this 
action ;  and,  therefore,  under  the  stipulation  already  set  forth,  the 
county  is  entitled  to  judgment."  Lake  Co,  v.  Rollins,  130  U.  S. 
662. 

A  clause  in  the  constitution  of  Illinois  declares  that  "  no  county, 
city,  etc.,  shall  be  allowed  to  become  indebted  in  any  manner,  or  for 
any  purpose,"  beyond  a  stated  amount.     Yet  the  decisions   of  the 
supreme  court  of  that  state  recognize  no  such  distinction   as    that,,^^^^^  SLk-I, 
sought  to  be  made  in  the  case  at  bar.     The  result  of  the  decisions  of\  \^^      ^ 


that  court  is,  that  it  can  make  no  difference  whether  the  debts  be 
created  for  necessary  current  expenses  or  for  something  else.  Princei 
r.  City  of  Q nine y,  106  ill.  138;  s.  c,  10.5  III.  21.5. 

The  supreme  court  of  Iowa  when  speaking  of  the  same  clause  in 
the  constitution  of  that  state  says:  "  The  language  of  this  provision 
is  very  general  and  comprehensive.  It  includes  indebtedness  in- 
curred in  any  manner  or  for  any  purpose."  City  of  Council  Bluffs 
r.  Stewart,  51  Iowa,  385.  It  is  true  the  clauses  in  the  constitutions 
of  the  states  just  named  prohibit  the  incurring  of  indebtedness 
beyond  a  specified  per  cent,  of  the  assessed  value  of  the  taxable 
property,  while  in  our  constitution  the  prohibition  is  asiainst  the 
incurring  of  an  indebtedness  in  excess  of  the  revenue  of  the  partic- 


-s-|j  6-A^ 


214  BARNARD   V.   KNOX   COUNTY. 

ular  year.  But  we  do  not  see  that  this  difference  affects  the  question 
in  hand.  The  object  of  all  these  provisions  is  to  fix  a  limit  to  county 
and  municipal  indebtedness. 

Our  constitution,  it  will  be  seen,  first  limits  the  rate  of  taxation 
for  county  purposes  to  fifty  cents  on  the  one-hundred-dollar  valuation 
in  counties  like  the  one  in  question.  This  rate  may  be  increased  by 
the  assent  of  the  qualified  voters  for  the  purpose  of  erecting  public 
buildings,  but  it  cannot  be  increased  even  by  such  assent  for  any 
other  purpose. 

We  have  held  that  a  county  court  cannot  levy  a  tax  in  excess  of 
the  fifty  cents  for  any  purpose,  except  for  the  purpose  of  erecting 
public  buildings,  and  for  the  purpose  of  paying  indebtedness  exist- 
ing at  the  date  of  the  adoption  of  the  constitution.  Arnold  v.  Haw- 
kins^ 95  Mo.  561);  Black  v.  McGonigle^  103  Mo.  192.  The  maximum 
limit  of  the  rate  of  taxation  for  county  purposes  being  thus  fixed, 
section  12,  to  repeat,  declares:  "No  county,  city  .  .  .  shall  be 
allowed  to  become  indebted  in  any  manner  or  for  any  purpose  to  an 
amount  exceeding  in  any  year  the  income  and  revenue  provided  for 
such  year."  As  to  counties  the  only  exception  is,  that  with  the 
assent  of  the  voters  the  expenditures  may  be  increased  for  the  erec- 
tion of  a  courthouse  or  jail.     The  language  just  quoted  is  clear  and 

explicit  and  construes  itself;    it  >«  brnnrl  anrl   pnTnprphpnsivp  na  tn  tj]p 

character  of  the  indebtedness.     It  includes  indebtedness  created  in 
^^  fHi?/  manner  or  for  any  purpose. 

>^vy^SC  C^  This  strong  and  comprehensive  language  admits  ofno  distinction 
^-«ViM>>tJ>^  between  debts  created  by  a  county  court  and  debts  created  by  law. 
Liy3^s*rs,/  In  a  sense  all  county  debts  are  created  by  law;  for  the  counties  pos- 
'-^;;;A.Jo-\  gess  those  powers  and  those  only  which  are  conferred  upon  them  by 
^-/  the  constitution  and  laws  of  the  state.  While  it  is  the  duty  of  the 
county  court  to  care  for  paupers  and  insane  persons  and  to  build 
bridges  and  repair  roads,  still  the  county  court  is  governed  by  the 
statute  in  the  performance  of  these  duties.  Debts  incurred  for  such 
purposes  may  be  called  debts  created  by  law  as  well  as  debts  incurred 
by  the  county  clerk  for  books  and  stationery. 

Nor  does  it  make  any  difference  that  the  debt  in  question  was 
created  by  the  clerk  instead  of  the  county  court.  The  clerk  in  the 
purchase  of  the  books  and  stationery  acted  as  a  county  officer;  the 
debt  incurred  by  him,  if  he  did  not  exceed  his  authority,  is  just  as 
much  a  county  debt  as  one  incurred  by  the  county  court.  The  law 
confers  upon  various  county  officers  the  power  to  create  debts  for 
designated  purposes,  but  the  debts  are  all  county  debts  when  charge- 
able to  the  county.  The  county  clerk,  county  court  and  other  county 
officers  must  take  notice  of  these  constitutional  limitations,  and  exer- 
cise the  powers  conferred  upon  them  in  subordination  to  such  restric- 
tions. To  hold  otherwise  is  to  say  the  clerk  and  other  officers  may 
execute  statutory  powers  in  excess  of  constitutional  restrictions,  and 
thus  make  the  statute  laws  override  the  constitution. 


o 


BARNARD  V.   KNOX  COUNTY.  215 

It  is,  of  course,  a  hardship  to  the  plaintiff  to  declare  this  warrant 
worthless,  but  we  cannot  dispose  of  the  question  on  any  such  surface 
view  of  the  matter.  The  constitution  seeks  to  protect  the  citizen  and 
taxpayer,  and  their  rights  are  not  to  be  overlooked.  It  is  the  duty 
of  persons  dealing  with  counties  and  county  officials,  as  well  as  of 
county  officials  themselves,  to  take  notice  of  the  limit  prescribed  by 
the  constitution.  1  Dill.  Munic.  Corp.  [4  Ed.]  sec.  lo4a.  Solicit- 
ing agents,  contractors  and  others  who  deal  with  county  officials  must 
see  to  it  that  the  limit  of  county  indebtedness  is  not  exceeded,  and, 
if  they  fail  to  do  this,  they  must  suffer  the  consequences.  Unless 
this  is  so  there  is  an  end  to  all  effort  to  bring  about  an  economical 
and  honest  administration  of  county  affairs.  If  this  scheme  of  county 
finances  built  up  by  the  constitution  is  a  mistake,  or  if  it  produces 
great  hardships  in  some  counties,  the  remedy  is  with  the  people  and 
not  with  the  courts.  "  What  a  court  is  to  do,  therefore,  is  to  declare 
the  law  as  written,  leaving  it  to  the  people  themselves  to  make  such 
changes  as  new  circumstances  may  require,"  Cooley  on  Const.  Lini. 
[5  Ed.]  67. 

The  plaintiff  insists  that  there  is  no  substantial  difference  between 
this  case  and  Potter  v.  Douglas  Co.,  87  Mo.  240.     In  that  case  the 
plaintiff  sued  Douglas  county  for  services  performed  by  him  as  jailer^j\Mirox.<o~ 
of  Greene   county,    in   keeping,    boarding,    clothing    and   taking   to  ^^^^j^^.^^_^j^ 
court  prisoners.     The  indebtedness  was  incurred  under  section  6090. 


Revised  Statutes,  1879.  The  agreed  statement  showed  "  that,  at  the 
time  the  fee  bill  was  presented  to  the  county  court,  the  revenue  for 
said  years  was  expended,  and  the  same  could  not  be  paid  without 
issuing  warrants  in  excess  of  the  income  and  revenue  for  said  years." 
On  this  statement  we  held  the  plaintiff  could  recover.  It  is  to  be 
observed  that  the  agreed  statement  in  that  case  did  not  show  that  the 
levenues  had  been  expended  when  the  indebtedness  was  incurred. 
'/ov  aught  that  appears  there  may  have  been  revenues  unexpended 
and  set  apart  to  the  proper  fund  when  the  indebtedness  was  con- 
tracted. Our  opinion,  however,  is  not  placed  on  any  such  ground. 
It  is  placed  upon  grounds  which  would  include  the  case  in  hand, 
and  which  are  inconsisteut  with  what  has  been  said  on  the  present 
occasion.  There  is,  of  course,  a  difference  between  the  facts  in  that 
case  and  the  facts  in  the  present  one,  but  the  constitution  takes  no 
notice  of  such  differences.     That  case  is,  therefore,  overruled. 

Now  the  agreed  statement  in  this  case  does  not,  in  terms,  say  that 
the  contingent  fund  set  apart  for  1885  had  been  exhausted  when  the 
^ooks  and  stationery  were  purchased ;  but  it  does  show  that  the  war- 
rant was  issued  at  the  date  of  the  purchase,  and  that  at  that  time  the 
jounty  court  had  issued  warrants  in  excess  of  the  total  revenue  for 
that  year.  This  statement  must  be  taken  in  connection  with  the 
petition  which  is  framed  upon  the  theory  that  the  whole  of  the  revenue 
had  been  consumed,  unless  warrants  issued  for  the  support  of  paupers 
and  for  building   bridges  and  repairing  roads  are  to  be  excluded 


216  DAVIS    V.    CITY   OF   DES   MOINES. 

We  think  it  sufficieutly  appears  that  the  contingent  fund  had  been 
consumed  when  the  debt  sued  for  was  incurred.  Indeed,  this  propo- 
sition is  not  questioned  in  the  briefs. 

The  warrant  was  issued  in  violation  of  the  constitution,  and  is 
void.  Judgment  affirmed.  Barclay,  J.,  absent;  the  other  judges 
concur. 


DAVIS   V.    CITY   OF   DES   MOINES. 

1887.     71  Iowa,  500. 

Appeal  from  Polk  Circuit  Court. 

The  petition  sets  forth  that  the  defendant  is  already  indebted  to 
the  full  constitutional  limit;  that  the  plaintiff  is  the  owner  of  certain 
land  fronting  on  one  of  the  streets  of  the  city,  and  that  the  city,  by 
its  officers,  entered  into  a  contract  with  one  McCauley  to  construct  a 
sewer  in  said  street,  and  to  pay  him  therefor  by  assessing  the  con- 
tract price  thereof  against  the  adjacent  property;  that  the  municipal 
authorities  are  about  to  make  said  assessment,  and  charge  the  same 
upon  the  lots,  and  proceed  to  collect  the  same  of  said  owner.  It  is 
prayed  that  the  said  contract  be  cancelled  and  declared  void,  and  the 
defendant  be  enjoined  from  in  any  manner  attempting  to  enforce 
^^^j^^  said  contract.  The  defendant,  by  its  answer,  denies  that  it  has  con- 
"^     .  tracted,  or  proposes  to  contract,  an  indebtedness  for  the  construction 

^*"*"*"^^    of  said  sewer.     There  was  a  demurrer  to  the  answer,  which  was  over- 
'^'''^'^^^''^ruled,  and  the  plaintiff  appeals. 
"^^[^jV  Henry  S.   Wilcox,  for  appellant. 

James  H.  Dietrick  and  Hugh  Brennan,  for  appellee. 
RoTHROCK,  J.  The  question  to  be  determined  is,  did  the  contract 
in  question  create  an  indebtedness  against  the  city?^  A  copy  of 
said  contract  is  exhibited  with  the  answer.  So  far  as  the  said  con- 
^^'V  tract  purports  to  create  an  obligation  against  the  city,  it  is  as  fol- 
^^^''^•'■^^^^ows:  "  The  said  P.  H.  McCauley  agrees  and  hereby  undertakes  to  do 
*-^~*^;^'*^and  perform  said  work  in  accordance  with  the  plans  and  specifica- 
-'^^^-^t;^^'^  tions,  at  the  following  rate  or  price,  to-wit:  one  dollar  and  seventy- 
^^'^^^-'^^^'our  cents  per  lineal  foot  or  square  yard,  which  price  shall  cover  the 
^^[^-**TV-  cost  of  the  entire  work.  The  said  cost  is,  under  the  law  and  ordi- 
nances of  said  city,  to  be  assessed  against  the  private  property  adja- 
cent to  or  fronting  on  the  street  upon  which  said  improvement  is 
made,  and  a  part  thereof,  to-wit:  in  seven  annual  installments,  as 
rovided  by  the  law  and  ordinances  of  the  city,  with  six  per  cent 
Lo.  interest.     Said  assessment  is  payable  as  follows:  When  such  assess- 

ment is  made,  and  any  portion  of  the  work  completed  and  accepted 
by  the  city,  certificates  thereof  shall  be  made  out  showing  the  amount 
levied  against  eacli  piece  of  property,  and  the  same  shall  be  delivered 
to  said  P.  II.  McCauley,  and  the  same  shall  be  received  by  him  in 


TUTTLE   V.   POLK.  217 

full  payment  for  said  work  or  Improvement  for  the  payment  of  which 
a  special  assessment  is  required  by  the  law  and  ordinances  of  said 
city,  and  delivered  to  said  P,  H.  McCauley  or  order.  Said  P.  H. 
McCauley  agrees  to  accept  said  certificates  in  full  payment  for  any 
and  all  work  performed  by  him  under  his  contract,  and  to  collect  the 
same  by  any  of  the  methods  provided  by  law,  and  at  his  own  cost 
and  expense;  and  it  is  expressly  agreed,  by  and  between  the  parties 
to  this  contract,  that,  upon  the  issuing  of  certificates  to  said  P.  H. 
McCauley  for  any  and  all  work  done  under  this  contract,  the  same 
shall  be  received  by  him  in  full  payment  therefor,  without  recourse 
to  the  city  of  Des  Moines,  Iowa." 

It  is  provided  by  section  3,  article  11,  of  the  constitution,  that 
"  no  county  or  other  political  or  municipal  corporation  shall  be  allowed 
to  become  indebted  in  any  manner,  for  any  purpose,  to  an  amount  in 
the  aggregate  exceeding  five  per  centum  on  the  value  of  the  taxable 
property  within  such  county  or  corporation,  to  be  ascertained  by  the 
last  state  and  county  tax-lists  previous  to  the  incurring  of  said 
indebtedness." 

It  seems  to  us  that  the  contract  in  question  does  not  create  an 
indebtednpssagninst  thp  nity.  There  is  no  doubt  that  the  city  is 
authorized  by  law  to  make  special  assessments  for  improvements  of 
this  character  upon  property  adjacent  to  the  improvements.  Such 
are  the  plain  provisions  of  our  statute.  See  chapter  162,  Laws  1878, 
and  section  16,  c.  168,  Laws  1886.  The  contract  involved  in  this 
case  expressly  provides  that  the  certificates  issued  by  the  city  shall 
be  accepted  by  the  contractor  in  full  payment  for  his  work,  without 
recourse  on  the  city.  The  city  can  never  be  held  liable  to  any  action 
for  the  construction  of  the  sewer.  Its  resources  cannot  be  affected 
thereby.  Its  contract  is  fully  and  completely  performed  by  ascer- 
taining the  amount  properly  chargeable  to  the  adjacent  property,  and 
the  issuance  of  assessment  certificates  to  the  contractor. 

We  think  the  demurrer  to  the  answer  was  properly  overruled. 

Affirmed.'^ 


ROBINSON,    J.,    IN  TUTTLE   v.   POLK.  ,^5^^       q.s.k*jJk  *^ 

1894.     92  Iowa,  433  ;  pp.  437-8  ;  pp.  441-2.  •S-'^'^'n^j-X:  ^  Lfviv_^JiXa:^a- 

Robinson,  J.   .   .   .  The  authority  under  which  the  city  acted    in  v.  ^"^ 

entering  into  the  agreement  is  found  in  chapter  168  of  the  Acts  of  v^  V"'^-^r^ 
the  Twenty-first  General  Assembly,  enacted  in  1886.  The  city  of  "^^  v"*^-^^ 
Des  Moines  is  within  the  provisions  of  that  act.     It  authorizes  con-  \         "  1  "* 

1  As  to  whether  the  city  would  be  liable  to  the  contractor  if  the  city  officers  neglect  'xajs^  'vxx5*-- 
to  make  the  assessment  (or  if  the  city  officers  neglect  to  collect  the  assessment  in  cases  o35-_     ,^  • 
where  the  duty  of  collection  rests  upon  the  city);  see  conflicting  authorities  cited  in_^  -jC. 

German-American  Sailings  Bank  v.  Citij  of  Spokane,  1897,  Supreme  Court  of  Washingi  ^-'^'^^  ^^-i'^Xi 
ton,  49  Pacific  Reporter,  542.     j^Z-^^vX^    c^-^,^aJL,o.-.,2JC     "^Sx^     ^....^  .  <^»>V> 


218  TUTTLE   V.   POLK. 

tracts  for  paving  and  curbing  streets  and  constructing  sewers  in 
cities  to  which  it  applies,  and  provides  for  the  issuing  of  bonds  in 
payment.  The  cost  of  the  improvement  is  to  be  assessed  upon  the 
property  fronting  or  abutting  upon  it,  and  placed  on  the  tax  list  of 
the  county,  and  is  payable  at  the  office  of  the  county  treasurer.  All 
money  received  from  the  assessments  is  to  be  appropriated  to  the 
payment  of  the  interest  and  principal  of  the  bonds,  or  certificates,  if 
any  are  issued  under  section  16  of  the  act.  The  section  is  as  fol- 
lows: "  Section  16.  If  by  reason  of  the  prohibition  contained  iu 
section  3,  article  11  of  the  constitution  of  this  state  it  shall  at 
any  time  be  unlawful  for  any  such  city  to  issue  bonds  as  by  this  act 
provided,  it  shall  be  lawful  for  such  city  to  provide  by  ordinance  for 
[the  issuance  of  certificates  to  contractors,  who  under  contract  with 
the  city  shall  have  constructed  any  such  improvement,  in  payment 
'therefor,  each  of  which  certificates  shall  state  the  amount  or  amounts 
of  one  or  more  of  the  assessments  made  against  an  owner  or  owners 
and  lot  or  lots  on  account  and  for  payment  of  the  cost  of  any  such 
improvement,  and  shall  transfer  to  the  contractor,  and  his  assigns, 
all  of  the  right  and  interest  of  such  city  to,  in  and  with  respect  to 
every  such  assessment,  and  shall  authorize  such  contractor  and  his 
assigns  to  receive,  sue  for,  and  collect,  or  have  collected,  every  such 
assessment,  embraced  in  any  such  certificate,  by  or  through  any  of 
^the  methods  provided  by  law  for  the  collection  of  assessments  for 
local  improvements,  including  the  provisions  of  this  act"  The  cer- 
tificates in  question  were  issued  under  the  authority  of  that  section 
and  chapter  44  of  the  Acts  of  the  Twenty-second  General  Assembly. 
The  last  named  act  is  only  designed  to  cure  defects,  and  provide  for 
the  reassessment  and  relevy  of  special  taxes  in  certain  cases,  and 
does  not  otherwise  add  to  the  power,  if  any,  conferred  upon  the  city 
by  section  16,  quoted,  to  create  indebtedness.  There  is  nothing  in 
that  section  which  makes  the  city  in  any  manner  liable  for  the  pay- 
ment of  the  certificates.  It  merely  authorizes  the  transfer  to  the  con- 
tractor or  his  assignee  of  all  the  right  and  interest  of  the  city  in  the 
assessment,  in  payment  of  the  improvements  made.  The  plain  legis- 
lative intent  was  to  provide  a  means  for  paying  for  improvements 
contemplated  by  the  act  without  the  incurring  of  any  liability  on  the 
part  of  the  city,  acting  under  the  provisions  of  section  16. 

It  is  said  that  the  provision  of  the  constitution  iu  question  was 
intended  to  protect  the  taxpayer  from  the  reckless  and  corrupt  acts  of 
public  officers,  that  the  municipal  corporations  and  the  citizens 
thereof  are  one  and  the  same,  and  that  debts  contracted  by  the  cor- 
poration are  debts  of  the  citizens  and  taxpayers.  There  is  a  sense 
,in  which  that  is  true,  but  it  is  not  recognized  in  the  constitution. 
That  does  not  limit  the  amount  which  may  be  levied,  in  the  form  of 
taxes  and  special  assessments,  upon  the  property  within  the  state.  It 
recognizes  the  county  and  other  political  and  municipal  corporations 


TUTTLE   V.   POLK.  219 

as  being  distinct  entities.  Although  none  can  incur  an  indebtedness 
in  excess  of  five  per  centum  of  the  value  of  the  taxable  property 
within  its  limits,  yet  the  same  territory,  and,  therefore,  the  same 
property,  may  be  included  within  the  limits  of  different  corporations, 
as  those  of  a  county,  city,  or  town,  and  school  district,  and  be  sub- vi-»-»-9c:  <»^ 
ject  to  taxation  for  the  debt  of  each.  Strictly  speaking,  such  a_  '^"v^'-^^^^-^' 
(»ebt  is  not  a  lien  upon  any  taxable  property,  nor  a  claim  against  any  c/v>-«Ji5- 
taxpayer,  until  a  levy  or  an  assessment  has  been  made.  Some  prop-  V-^^-^'^^^^^ 
erty  may  be  within  the  corporate  limits  when  a  debt  is  created,  and  ^^^^""^ 
without  them  when  the  tax  for  its  payment  is  assessed.  So  the  V"'^'''^''^ 
property  owner,  whose  influence  helps  to  create  the  debt,  may  have 
no  property  taxable  within  the  corporate  limits  when  the  debt 
becomes  due.  It  seems  clear  that  insuch  cases  the  debt  of  the  corpo- 
ration is  not  primarily  the  debt  of  the  owners  of  property  within  its 
limits,  and  the  case  is  not  different,  in  a  legal  sense,  when  an  assess- 
ment  is  made  tor  the  payment  of  the  debt  at  the  time  it  is  created, 
although  in  that  case  each  property  owner  who  has  property  subject 
to  assessment  may  be  liable  for  a  definite  portion  of  the  debt.  In 
this  case  the  city  attempted  to  enter  into  a  contract  for  paving,  for 
which  a  fixed  compensation  was  to  be  paid.  The  contract  did  not 
require  any  payment  to  be  made  by  the  city,  excepting  in  certificates, 
but  provided  that  the  agreed  price  should  be  collected  by  means  of 
assessments.  The  paving  of  the  streets  is  one  of  the  purposes  foil 
which  the  city  exists,  and  for  which  it  might  have  assumed  liability, 
had  its  debt  not  reached  the  constitutional  limit;  but  it  guarded 
against  the  assuming  of  any  liabilit}',  and  placed  the  burden  of  the 
improvement  upon  the  owners  of  property  which  fronted  upon  it. 
That  right  was  given  by  a  statute  which  was  especially  designed  to 
authorize  the  making  of  such  improvements  without  cost  to  the  city, 
and  we  find  nothing  to  prevent  giving  it  full  effect.  We  do  not  think 
there  is  any  sufficient  reason  for  holding  that  the  city  is  in  any 
respect  liable  for  the  amounts  represented  by  the  certificates,  nor 
that  the  obligation  of  the  taxpayer  is  the  debt  of  the  city!  In  JJavis 
V.  City  of  Des  Moines^  71  Iowa,  500,  32  N.  W.  Rep.  470,  it  appeared 
that  a  contract  for  the  construction  of  a  sewer  was  entered  into, 
similar  to  the  one  attempted  to  be  made  in  this  case,  and  under  the 
same  statute.  It  was  held  that  an  assessment  certificate  issued  pur- 
suant to  the  contract  to  pay  for  the  improvement  did  not  create  an 
indebtedness  against  the  city.  We  conclude  that  section  16  of  the 
Act  of  the  Twenty-first  General  Assembly  in  question  is  not  uncon- 
stitutional, as  attempting  to  provide  for  the  creation  of  a  debt  in 
excess  of  the  amount  authorized  by  the  constitution. 


^^  220  /      I      *^  MARSH- v.   FtfljTQN- COUNTY. 


^  CHAPTEE  VI. 


RIGHTS  OF  BONA-FIDE   HOLDERS  OF  NEGOTIABLE  BONDS 


MARSH   V.    FULTON   COUNTY. 

1870.     10  Wallace  (U.  S.),  676.1 

Error  to  U.  S.  Circuit  Court  for  Southern  District  of  Illinois. 

Suit  on  fifteen  bonds,  purporting  to  be  the  obligations  of  the 
County  of  Fulton  to  the  Central  Division  of  the  Mississippi  and 
Wabash  R.  R.  Co.,  or  bearer.  The  Mississippi  and  Wabash  R.  R. 
Co.  was  incorporated  by  the  legislature  of  Illinois  in  February,  1853. 
At  an  election  held  in  November,  1853,  a  majority  of  the  voters  of 
Fulton  County  voted  that  the  county  should  subscribe  $75,000  to  the 
capital  stock  of  the  aforesaid  company,  payable  in  the  bonds  of  the 
county;  such  bonds  not  to  be  issued  until  certain  conditions  were 
complied  with.  (The  material  portions  of  the  Illinois  statute  author- 
izing county  subscriptions  are  stated  in  the  opinion  of  the  court.) 

In  February,  1857,  an  act  was  passed  by  the  legislature  of  Illinois 
amending  the  charter  of  the  Mississippi  and  Wabash  Company,  by 
which  the  line  of  the  railroad  was  divided  into  three  divisions,  desig- 
nated the  Western,  the  Central,  and  the  Eastern  divisions,  and  each 
division  was  placed  under  the  management  and  control  of  a  board  of 
three  commissioners,  to  be  elected  by  the  stockholders  of  the  divi- 
sion, and  to  be  invested  with  all  the  powers  of  the  original  board  of 
directors  of  the  company  over  the  road  in  their  division. 

In  April,  1857,  the  stockholders  within  the  Central  Division  elected 
commissioners  of  the  division,  who  thenceforth,  until  December, 
1868,  exercised  all  the  powers  conferred  by  this  amendatory  act. 

On  the  books  of  the  Central  Division  thus  organized,  the  clerk 
of  the  County  Court  of  Fulton  County,  acting  as  clerk  of  the  board 
of  supervisors  of  that  county,  made  the  subscription  of  $75,000  in 
the  name  of  the  county,  and  in  September  following  issued  to  this 
division  the  fifteen  bonds  which  are  in  suit  in  this  cause. 

[The  bonds  contain  no  recitals  as  to  the  statute  under  which  they 
were  issued,  or  as  to  the  prior  votes  or  proceedings  of  the  county  or 
xts  oflicers.] 

There  were  various  acts  of  the  board  of  supervisors  of  Fulton 
County  done  after  the  issue  of  these  bonds,  which  tended  to  show 

1  Statement  abridged.  —  Ed. 


MARSH   V.   FULTON   COUNTY. 


221 


that  the  board  recognized  them  and  considered  the  county  bound  foi 
them. 

Defendants  pleaded  the  general  issue,  and  judgment  was  rendered 
in  their  favor. 

0.  H.  Brownivg  and  0.  C.  Skinner^  for  plaintiff  in  error,  re 
lied  largely  on  the  fact  which  they  asserted,  and  which  they  relied 
on  as  not  disproved,  that  the  bonds  were  in  the  hands  of  innocent 
holders  for  value ;  and  that  whether  regularly  issued  originally  or 
not,  they  had  been  ratified  by  the  county  in  so  many  different  ways, 
so  advisedly  and  so  unequivocally,  that  irregularity  could  not  now 
be  set  up. 

S.  Corning  Judd,  contra. 

Mr.  Justice  Field  delivered  the  opinion  of  the  court.  rC^  .  .  «->  fL'.. 

The  questions  ]3resented  for  our  consideration  are,  firsts  whether  t  O^^  ilkjl,  ^ 
the  bonds  issued  by  the  clerk  of  the  County  Court  of  Fulton  County  Vx»*-&-«  ^ 
to  the  Central  Division  of  the  Mississippi  and  Wabash  Railroad  <o3^  v>-^ 
Company  were,  at  the  time  of  their  issue,  valid  obligations  of  the  -^  .'^J^^-vsa^ 
County  of  Fulton;  and,  secoy,d.  if  not  thns  vnlid^  OThpfhpr  thpy  h^^^^  "SKk^j^ )^>JOj 
become  obligatory  upon  the  county  by  any  subsequent  ratification.      ''p'-«-*-a- ^>• 

Were  they  valid  when  issued?  The  answer  depends  upon  the  lawL_^^^;^_5^ 
of  Illinois  then  in  force.  The  clerk  of  the  County  Court  possessed  J_  .  CL5isi..*J 
no  general  authority  to  bind  the  county.  He  was  a  mere  ministerial  ' 
oflKcer  of  the  board  of  supervisors;  and  that  body  was  equally  desti- 
tute  of  authority  in  this  particular,  except  as  the  law  of  Illinois 
gave  it.  That  law  authorized  any  county  of  the  State,  and,  of 
course,  its  supervisors,  who  exercised  the  powers  of  the  county,  to 
subscribe  stock  to  any  railroad  company  in  a  sum  not  exceeding 
one  hundred  thousand  dollars,  and  to  pay  for  such  subscription  in 
its  bonds,  provided  such  subscription  was  previously  sanctioned  by 
a  majority  of  the  qualified  voters  of  the  county  at  an  election  called 
for  the  expression  of  their  wishes  on  the  subject,  and  it  prohibited 
any  subscription  or  the  issue  of  any  bonds  for  such  subscription 
without  such  previous  sanction.  "  No  subscription  shall  be  made  or 
purchase  bond  issued  by  any  county,"  says  the  law,  "  unless  a 
majority  of  the  qualified  voters  of  such  county  .  .  .  shall  vote  for  the 
same."  And  the  law  further  requires  that  the  notices  calling  for  the 
election  "  shall  specify  the  company  in  which  stock  is  proposed  to  be 
subscribed." 

These  provisions  furnish  the  answer  to  the  first  question  presented. 
The  only  subscription  authorized  by  the  voters  of  Fulton  County  was 
that  to  the  Mississippi  and  Wabash  Railroad  Company,  and  one 
CO  the  Petersburgh  and  Springfield  Company^.      The  Cjmtial  Division 


of  the  Miijsissipni  and  Wabash  Railroad  Company  was  a  different 
corporation  from  the  original  company.  It  has  been  so  held  by  the 
Supreme  Court  of  Illinois  in  a  case  involving  the  consideration  of  a 
portion  of  the  bonds  in  suit  and  the  remaining  sixty  thousand  dollars 
of  bonds  of  the  original  subscription. 


222 


MARSH   V.   FULTON   COUNTY. 


9 


f 


The  amendatory  act  of  1857  dividing  the  road  into  three  divisions, 
and  subjecting  each  division  to  the  control  and  management  of  a 
different  board,  clothed  with  all  the  powers  of  the  original  board,  so 
far  as  the  division  was  concerned,  worked  a  fundamental  change  in 
the  character  of  the  original  corporation,  and  created  three  distinct 
corporations  in  its  place.  A  subscription  to  a  company  whose 
charter  provided  for  a  continuous  line  of  railroad  of  two  hundred 
and  thirty  miles,  across  the  entire  State,  was  voted  by  the  electors  of 
Fulton  County ;  not  a  subscription  to  a  company  whose  line  of  road 
was  less  than  sixty  miles  in  extent,  and  which,  disconnected  from  the 
other  portions  of  the  original  line,  would  be  of  comparatively  little 
value. 

But  it  is  earnestly  contended  that  the   plaintiff  was  an  innocent 
purchaser  of  the  bonds  without  notice  of  their  invalidity.     If  such 
were  the  fact  we  do  not  perceive  how  it  could  affect  the  liability  of  the 
,  iCounty  of  Fulton.     This  is  not  a  case  where  the  party  executing  the 

f  /instruments  possessed  a  general  capacity  to  contract,  and  where  the 
/  instruments  might  for  such  reason  be  taken  without  special  inquiry 

/  into  their  validity.  It  is  a  case  where  the  power  to  contract  never 
existed  —  where  the  instruments  might,  with  equal  authority,  have 
been  issued  by  any  other  citizen  of  the  county.  It  is  a  case,  too, 
where  the  holder  was  bound  to  look  to  the  action  of  the  officers  of  the 
county  and  ascertain  whether  the  law  had  been  so  far  followed  by 
them  as  to  justify  the  issue  of  the  bonds.  The  authority  to  contract 
must  exist  before  any  protection  as  an  innocent  purchaser  can  be 
claimed  by  the  holder.  This  is  the  law  even  as  respects  commercial 
paper,  alleged  to  have  been  issued  under  a  delegated  authority,  and 
is  stated  in  the  case  of  Floyd  Acceptances.^  In  speaking  of  notes 
and  bills  issued  or  accepted  by  an  agent,  acting  under  a  general  or 
special  power,  the  court  says:  "  In  each  case  the  person  dealing  with 
the  agent,  knowing  that  he  acts  only  by  virtue  of  a  delegated  power, 
must,  at  his  peril,  see  that  the  paper  on  which  he  relies  comes  within 
the  power  under  which  the  agent  acts.  And  this  applies  to  every 
person  who  takes  the  paper  afterwards ;  for  it  is  to  be  kept  in  mind 
tliat  the  protection  which  commercial  usage  throws  around  negotiable 
paper  cannot  be  used  to  establish  the  authority  by  which  it  was 
originally  issued." 

It  is  also  contended  that  if  the  bonds  in  suit  were  issued  without 
authority  their  issue  was  subsequently  ratified,  and  various  acts  of 
the  supervisors  of  the  county  are  cited  in  support  of  the  supposed 
ratification.  These  acts  fall  very  far  short  of  showing  any  attempted 
ratification  even  by  the  supervisors.  But  the  answer  to  them  all  is 
that  the  power  of  ratification  did  not  lie  with  the  supervisors.  A 
ratification  is,  in  its  effect  upon  the  act  of  an  agent,  equivalent  to 
the  possession  by  him  of  a  previous  authority.  It  operates  upon  the 
act  ratified  in  the  same  manner  as  though  the  authority  of  the  agent 

1  7  Wallace.  676. 


TOWN   OF  COLOMA   V.    EAVES.  223 

to  do  the  act  existed  origiDally.  It  follows  that  a  ratification  can 
only  be  made  when  the  party  ratifying  possesses  the  power  to  per- 
form the  act  ratified.  The  supervisors  possessed  no  authority  to 
make  the  subscription  or  issue  the  bonds  in  the  first  instance  without 
the  previous  sanction  of  the  qualified  voters  of  the  county.  The 
supervisors  in  that  particular  were  the  mere  agents  of  the  county. 
They  could  not,  therefore,  ratify  a  subscription  without  a  vote  of 
the  county,  because  they  could  not  make  a  subscription  in  the  first 
instance  without  such  authorization.  It  would  be  absurd  to  say  that 
they  could,  without  such  vote,  by  simple  expressions  of  approval, 
or  in  some  other  indirect  way,  give  validity  to  acts,  when  they  were 
directly  in  terms  prohibited  by  statute  from  doing  those  acts  until 
after  such  vote  was  had.  That  would  be  equivalent  to  saying  that 
an  agent,  not  having  the  power  to  do  a  particular  act  for  his  prin- 
cipal, could  give  validity  to  such  act  by  its  indirect  recognition.^ 

We  do  not  mean  to  intimate  that  liabilities  may  not  be  incurred  by 
counties  independent  of  the  statute.  Undoubtedlj'  they  may  be. 
The  obligation  to  do  justice  rests  upon  all  persons,  natural  and 
artificial,  and  if  a  county  obtains  the  money  or  property  of  others 
without  authority,  the  law,  independent  of  any  statute,  will  compel 
restitution  or  compensation.  But  this  is  a  very  different  thing  from 
enforcing  an  obligation  attempted  to  be  created  in  one  way,  when  the 
statute  declai-es  that  it  shall  only  be  created  in  another  and  different  way 

We  perceive  no  error  in  the  record,  and  the  judgment  of  the  Circuit 
Court  must,  therefore,  be  Affirmed. 


TOWN   OF   COLOMA   v.    EAVES. 

1875.     92  U.  S.  484. 

Error  to  the  Circuit  Court  of  the  United  States  for  the  Northern 
District  of  Illinois. 

Assumpsit  brought  by  the  plaintiff  below  to  recover  the  amount  due 
on  the  coupons  attached  to  certain  bonds,  purporting  to  have  been 
issued  by  the  town  of  Coloma,  through  its  proper  officers,  to  the 
Chicago  and  Rock  River  Railroad  Company,  in  payment  ol  a  sub- 
scription of  850,000  by  the  town  to  said  company.  The  form  of  the 
bond  is  as  follows :  — 

UxiTED  States  op  America.  [$1,000. 

"CouxTY  of  Whiteside, 

"  State  of  Illinois,  Town  of  Coloma  :  — 

"  Know  all  men  by  these  presents,  That  the  township  of  Coloma, 
in  the  county  of  Whiteside,  and  State  of  Illinois,  acknowledges  itself 
to  owe  and  be  indebted  to  the   Chicago  and   Rock  River   Railroad 

1    McCracken  v.  City  of  San  Francisco,  16  California,  624. 


224  TOWN   OF   COLOMA   V.    EAVES. 

Company,  or  bearer,  in  the  sum  of  $1,000,  lawful  money  of  the 
United  States;  which  sum  the  said  town  of  Coloma  promises  to  pay 
to  the  Chicago  and  Rock  River  Railroad  Company,  or  the  bearer 
hereof,  on  the  first  day  of  July,  1881,  at  the  office  of  the  treasurer  of 
the  count}'  of  Whiteside  aforesaid,  in  the  State  of  Illinois,  on  the 
presentation  of  this  bond,  with  interest  thereon  from  the  first  day  of 
January,  1872,  at  the  rate  of  ten  per  centum  per  annum,  payable 
annually  at  the  office  of  the  treasurer  of  the  county  of  Whiteside 
aforesaid,  on  the  presentation  and  surrender  of  the  annexed  coupons. 

"  [U.  S.  $5  revenue-stamp.] 

"  This  bond  is  issued  under  and  by  virtue  of  a  law  of  the  State  of 
Illinois  entitled  '  An  Act  to  incorporate  the  Chicago  and  Rock  River 
Railroad  Company,'  approved  March  24,  1869,  and  in  accordance 
with  a  vote  of  the  electors  of  said  township  of  Coloma,  at  a  regular 
election  held  July  28,  1869,  in  accordance  with  said  law,  and  under 
a  law  of  the  State  of  Illinois  entitled  '  An  Act  to  fund  and  provide 
for  the  paying  of  the  railroad  debts  of  counties,  townships,  cities, 
and  towns,'  in  force  April  16,  1869;  and,  when  this  bond  is  regis- 
tered in  the  State  auditor's  office  of  the  State  of  Illinois,  the  princi- 
pal and  interest  will  be  paid  by  the  State  treasurer,  as  provided  by 
said  last-mentioned  law. 

"  In  witness  whereof,  the  supervisor  and  town-clerk  of  said  town 
have  hereunto  set  their  hands  and  seals  this  first  day  of  January, 
A.D.   1872. 

^'(Signed)  M.  R.  Adajis,  Supervisor.  [seal.] 

"(Signed)  J.  D.  Davis,  Town-Clerk.  [seal.]" 

Recovery  was  resisted  by  the  town,  mainly  upon  the  alleged  ground 
of  a  want  of  power  in  the  officers  of  the  town  to  issue  the  bonds, 
because  the  legal  voters  of  the  town  had  not  been  notified  to  vote 
upon  the  question  of  the  town's  making  the  subscription  in  question. 

On  the  trial  of  the  case,  judgment  was  rendered  for  the  plaintiff 
for  the  amount  of  the  coupons,  and  interest  after  they  were  due. 

C.  M.  Osborn  for  plaintiff. 

J.  Grant.,  contra. 

Mr.  Justice  Strong  delivered  the  opinion  of  the  court. 

It  appears  by  the  record  that  the  plaintiff  is  a  bona  fide  holder  and 
owner  of  the  coupons  upon  which  the  suit  is  founded,  having  obtained 
them  before  they  were  due,  and  for  a  valuable  consideration  paid. 
The  bonds  to  which  the  coupons  were  attached  were  given  in  pay- 
ment of  a  subscription  of  $r)0,000  to  the  capital  stock  of  the  Chicago 
and  Rock  River  Railroad  Company,  for  which  the  town  received  in 
return  certificates  of  five  hundred  shares,  of  $100  each,  in  the  stock 
of  the  company.  That  stock  the  town  retains,  but  it  resists  the  pay- 
ment of  the  bonds,  and  of  the  coupons  attached  to  them,  alleging 
that  they  were  issued  without  lawful  authority. 


TOWN   OF   COLOMA   V.   EAVES.  225 

Saying  nothing  at  present  of  the  dishonesty  of  such  a  defence 
while  the  consideration  for  which  the  bonds  were  given  is  retained, 
we  come  at  once  to  the  question,  whether  authority  was  shown  for 
the  stock  subscription,  and  for  the  consequent  issue  of  the  bonds. 
At  the  outset,  it  is  to  be  observed  that  the  question  is  not  between 
the  town  and  its  own  agents:  it  is  rather  between  the  town  and  a 
person  claiming  through  the  action  of  its  agents.  The  rights  of  the 
town  as  against  its  agents  may  be  very  different  from  its  rights  as 
against  parties  who  have  honestly  dealt  with  its  agents  as  such,  on 
the  faith  of  their  apparent  authority. 

By  an  act  of  the  legislature  of  Illinois,  the  Chicago  and  Rock  River 
Railroad  Company  was  incorporated  with  power  to  build  and  operate 
a  railroad  from  Rock  Falls  on  Rock  River  to  Chicago,  a  distance  of 
about  one  hundred  and  thirty  miles.  The  tenth  section  of  the  act 
enacted,  that,  "  to  aid  in  the  construction  of  said  road,  any  incor- 
porated citj-,  town,  or  township,  organized  under  the  township  organ- 
ization laws  of  the  State,  along  or  near  the  route  of  said  road,  might 
subscribe  to  the  capital  stock  of  said  company."  That  the  town  of 
Coloma  was  one  of  the  municipal  divisions  empowered  by  this  sec- 
tion to  subscribe  fully  appears,  and  also  that  the  railroad  was  built 
into  the  town  before  the  bonds  were  issued.  But  it  is  upon  the 
eleventh  section  of  the  act  that  the  defendant  relies.  That  section  is 
as  follows :  — 

"  No  such  subscription  shall  be  made  until  the  question  has  been 
submitted  to  the  legal  voters  of  said  city,  town,  or  township,  in 
which  the  subscription  is  proposed  to  be  made.  And  the  clerk  of 
such  city,  town,  or  township,  is  hereby  required,  upon  presentation 
of  a  petition  signed  by  at  least  ten  citizens  who  are  legal  voters  and 
tax-payers  in  such  city,  town,  or  township,  stating  the  amount  pro- 
posed to  be  subscribed,  to  post  up  notices  in  three  public  places  in 
each  town  or  township;  which  notices  shall  be  posted  not  less  than 
thirty  days  prior  to  holding  such  election,  notifying  the  legal  voters 
of  such  town  or  township  to  meet  at  the  usual  places  of  holding 
elections  in  such  town  or  township,  for  the  purpose  of  voting  for  or 
against  such  subscriptions.  If  it  shall  appear  that  a  majority  of  all 
the  legal  voters  of  such  city,  town,  or  township,  voting  at  such  elec- 
tion, have  voted  '  for  subscription,'  it  shall  be  the  duty  of  the  presi- 
dent of  the  board  of  trustees,  or  other  executive  officer  of  such  town, 
and  of  the  supervisor  in  townships,  to  subscribe  to  the  capital  stock 
of  said  railroad  company,  in  the  name  of  such  city,  town,  or  town- 
ship, the  amount  so  voted  to  be  subscribed,  and  to  receive  from  such 
company  the  proper  certificates  therefor.  He  shall  also  execute  to 
said  company,  in  the  name  of  such  city,  town,  or  township,  bonds 
bearing  interest  at  ten  per  cent  per  annum,  which  bonds  shall  run 
for  a  term  of  not  more  than  twenty  years,  and  the  interest  on  the 
same  shall  be  made  payable  annually;  and  which  said  bonds  shall  be 
signed  by  such  president  or  supervisor  or  other  executive  officer,  and 

15 


226  TOWN   OF   COLOMA   V.    EAVES. 

be  attested  by  the  clerk  of  the  city,  town,  or  township,  in  whose 
name  the  bonds  are  issued." 

Sect.  12  provides,  "  It  shall  be  the  duty  of  the  clerk  of  any  such 
city,  town,  or  township,  in  which  a  vote  shall  be  given  in  favor  of  sub- 
scriptions, within  ten  days  thereafter,  to  transmit  to  the  county-clerk 
of  their  counties  a  transcript  or  statement  of  the  vote  given,  and  the 
amount  so  voted  to  be  subscribed,  and  the  rate  of  interest  to  be  paid." 

Most  of  these  provisions  are  merely  directory.  But  conceding,  as 
we  do,  that  the  authority  to  make  the  subscription  was,  by  the 
eleventh  section  of  the  act,  made  dependent  upon  the  result  of  the 
submission  of  the  question,  whether  the  town  would  subscribe,  to  a 
popular  vote  of  the  township,  and  upon  the  approval  of  the  subscrip- 
tion by  a  majority  of  the  legal  voters  of  the  town  voting  at  the  elec- 
tion, a  preliminary  inquiry  must  be.  How  is  it  to  be  ascertained 
whether  the  directions  have  been  followed?  whether  there  has  been 
A  any  popular  vote,  or  whether  a  majority  of  the  legal  voters  present 
at  the  election  did,  in  fact,  vote  in  favor  of  a  subscription  ?     Is  the 


/ 


ascertainment  of  these  things  to  be  before  the  subscription  is  made, 
and  before  the  bonds  are  issued  ?  or  must  it  be  after  the  bonds  have 
been  sold,  and  be  renewed  every  time  a  claim  is  made  for  the  pay- 
ment of  a  bond  or  a  coupon?  The  latter  appears  to  us  inconsistent 
with  any  reasonable  construction  of  the  statute.  Its  avowed  purpose 
was  to  aid  the  building  of  the  railroad  by  placing  in  the  hands  of  the 
railroad  company  the  bonds  of  assenting  municipalities.  These 
bonds  were  intended  for  sale ;  and  it  was  rationally  to  be  expected 
that  they  would  be  put  upon  distant  markets.  It  must  have  been 
considered,  that,  the  higher  the  price  obtained  for  them,  the  more 
advantageous  would  it  be  for  the  company,  and  for  the  cities  and 
towns  which  gave  the  bonds  in  exchange  for  capital  stock.  Every 
thing  that  tended  to  depress  the  market-value  was  adverse  to  the 
object  the  legislature'had  in  view.  It  could  not  have  been  overlooked 
that  their  market-value  would  be  disastrously  affected  if  the  distant 
purchasers  were  under  obligation  to  inquire  before  their  pui-chase,  or 
whenever  they  demanded  payment  of  principal  or  interest,  whether 
certain  contingencies  of  fact  had  happened  before  the  bonds  were 
issued,  —  contingencies  the  happening  of  which  it  would  be  almost 
impossible  for  them  in  many  cases  to  ascertain  with  certainty.  Im- 
posing such  an  obligation  upon  the  purchasers  would  tend  to  defeat 
the  primary  purpose  the  legislature  had  in  view;  namely,  aid  in  the 
construction  of  the  road.  Such  an  interpretation  ought  not  to  be 
given  to  the  statute,  if  it  can  reasonably  be  avoided;  and  we  think  it 
may  be  avoided. 

At  some  time  or  other,  it  is  to  be  ascertained  whether  the  direc- 
tions of  the  act  have  been  followed;  whether  there  was  any  popular 
vote;  or  whether  a  majority  of  the  legal  voters  present  at  the  election 
did,  in  fact,  vote  in  favor  of  the  subscription.  The  duty  of  ascer- 
taining was  plainly  intended  to  be  vested  somewhere,  and  once  for 


TOWN   OF  COLOMA   V.   EAVES.  227 

all ;  and  the  only  persons  spoken  of  who  have  any  duties  to  perform 
respecting  the  election,  and  action  consequent  upon  it,  are  the  town- 
clerk  and  the  supervisor  or  other  executive  otRcer  of  the  city  or  town. 
It  is  a  fair  presumption,  therefore,  that  the  legislature  intended  that 
those  officers,  or  one  of  them  at  least,  should  determine  whether 
the  requirements  of  the  act  prior  to  a  subscription  to  the  stock  of 
a  railroad  company  had  been  met.  This  presumption  is  strengthened 
by  the  provisions  of  the  twelfth  section,  which  make  it  the  duty  of 
the  clerk  to  transmit  to  the  county-clerk  a  transcript  or  statement, 
verified  by  his  oath,  of  the  vote  given,  with  other  particulars,  in  case 
a  subscription  has  been  voted.  How  is  he  to  perform  this  duty  if  he 
is  not  to  conduct  the  election,  and  to  determine  what  the  voters  have 
decided?  If,  therefore,  there  could  be  any  obligation  resting  on  per- 
sons proposing  to  purchase  the  bonds  purporting  to  be  issued  under 
such  legislative  authorit}',  and  in  accordance  with  a  popular  vote,  to 
inquire  whether  the  provisions  of  the  statute  had  been  followed,  or 
whether  the  conditions  precedent  to  their  lawful  issue  had  been  com- 
plied with,  the  inquiry  must  be  addressed  to  the  town-clerk  or  exec- 
utive officer  of  the  municipality,  —  to  the  very  person  whose  duty  it 
was  to  ascertain  and  decide  what  were  the  facts.  The  more  the 
statute  is  examined,  the  more  evident  does  this  become.  The 
eleventh  section  (quoted  above)  declared,  that  if  it  should  appear  that 
a  majority  of  the  legal  voters  of  the  city,  town,  or  township,  voting, 
had  voted  "for  subscription,"  the  executive  officer  and  clerk  should 
subscribe  and  execute  bonds.  "If  it  should  appear,"  said  the  act.  1 
Appear  when?  Why,  plainly,  before  the  subscription  was  made 
and  the  bonds  were  executed;  not  afterwards.  Appear  to  whom? 
In  regard  to  this,  there  can  be  no  doubt.  Manifestly  not  to  a  court, 
after  the  bonds  have  been  put  on  the  market  and  sold,  and  when 
payment  is  called  for,  but  if  it  shall  appear  to  the  persons  whose 
province  it  was  made  to  ascertain  wlaat  had  been  done  preparatory  to 
their  own  action,  and  wliosc  duty  it  was  to  issue  the  bonds  if  the  vote 
appeared  to  tliem  to  justifv  such  action  uncler  the  law.  These  per- 
sons were  the  supervisor  and  town-clerk'.  Their  right  to  issue  the 
bonds  was  made  dependent  upon  the  appearance  to  them  of  the 
performance  of  the  conditions  precedent.  It  certainly  devolved  upon 
some  person  or  persons  to  decide  this  preliminary  question;  and 
there  can  be  no  doubt  who  was  intended  by  the  law  to  be  the  arbiter. 
In  Commission ers  v.  Nichols,  14  Ohio  St.  260,  it  was  said  that  "  a 
statute,  in  providing  that  county  bonds  should  not  be  delivered  by 
the  commissioners  until  a  suHieient  sum  had  been  provided  by  stock- 
subscriptions,  or  otherwise,  to  complete  a  certain  railroad,  and  impos- 
ing upon  them  the  duty  of  delivering  the  bonds  when  such  provision 
had  lieen  made,  without  iudicating  any  person  or  tribunal  to  deter- 
mine that  fact,  necessarily  delegates  that  power  to  the  commis- 
sioners; and,  if  delivered  improvidently,  the  bonds  will  not  be 
invalidated." 


228  TOWN   OF   COLOMA   V.   EAVES. 

In  the  present  case,  the  person  or  persons  whose  duty  it  was  to 
determine  whether  the  statutory  requisites  to  a  subscription  and  to 
an  authorized  issue  of  the  bonds  had  been  performed  were  those  whose 
Juty  it  was  also  to  issue  the  bonds  in  the  event  of  such  performance. 
The  statute  required  the  supervisor  or  other  executive  officer  not  only 
CO  subscribe  for  the  stock,  but  also,  in  conjunction  with  the  clerk, 
to  execute  bonds  to  the  railroad  company  in  the  name  of  the  town 
fov  the  amount  of  the  subscription.     The  bonds  were  required  to  be 
signed  by  the  supervisor  or  other  executive  officer,  and  to  be  attested 
by  the  clerk.     They  were  so  executed.     The  supervisor  and  the  clerk 
signed  them ;  and  they  were  registered  in  the  office  of  the  auditor  of 
ihe  State,  in    accordance  with  an  act,  requiring   that,  precedent  to 
their  registration,  the    supervisor   must   certify   under   oath   to   the 
auditor  that  all  the  preliminary  conditions  to  their    issue   required 
by  the  law  had  been  complied  with.     On  each  bond  the  auditor  cer- 
tified the  registry.     It  was  only  after  this  that  they  were  issued.     And 
the  bonds  themselves  recite  that  they  "  are  issued  under  and  by  virtue 
of  the  act  incorporating  the  j-ailroad  company,"  approved  March  24, 
1869,  "  and  in  accordance  with  the  vote  of  the  electors  of  said  town- 
ship of  Coloma,  at  a  regular  election  held  July  28,  1869,  in  accord- 
ance with  said  law."     After  all  this,  it  is  not  an  open  question,  as 
between  a  bona  fide  holder  of  the  bonds  and  the  township,  whether 
alTllIe  pre'fequTsifes  to  their  issue  had  been  complied  with.      Apart 
from  and  beyond  the  reasonable  presumption  that  the  officers  of  the 
law,    the  "township-officers,  discharged   their   duty,    the   matter   has 
passed  into  judgment.     The  persons  appointed  to  decide  whether  the 
necessary    preie(|uisites    to   their   issue    had    been    completed    have 
decided,  and  certified  their  decision.     They  have  declared  the  con- 
tingency to  have  happened,  on  the  occurrence  of  which  the  authority 
to  issue  the  bonds  was  complete.     Their  recitals  are  such  a  decision; 
and  beyond  those  a  hnnn  fide  purchaser    is  not    bound  to   look  for 
evidence  of  the  existence  of  things  in  ^^ai.s.     He  is  bound  to  know 
the  law  conferring  upon  the  municipality  power  to  give  the  bonds  on 
the  happening  of  a  contingency;  but  whether  that  has  happened  or 
not  is  a  question  of  fact,  the  decision  of  which  is  by  the  law  confided 
to  others,  —  to  those  most  competent  to  decide  it,  —  and  which  the 
l)urchaser  is,  in  general,  in  no  condition  to  decide  for  himself. 

This  we  understand  to  be  the  settled  doctrine  of  this  court. 
Indeed,  some  of  our  decisions  have  gone  farther.  In  the  leading 
case  of  Knox  v.  Aspinwall^  21  How.  544,  the  decision  was  rested 
upon  two  grounds.  One  of  them  was  that  the  mere  issue  of  the 
bonds,  containing  a  recital  that  they  were  issued  under  and  in 
pursuance  of  the  legislative  act,  was  a  sufficient  basis  for  an  assump- 
tion by  the  purchaser  that  the  conditions  on  whicli  the  county  (in 
that  case)  was  authorized  to  issue  them  had  been  complied  with;  and 
it  was  said  that  the  purchaser  was  not  bound  to  look  farther  for 
evidence  of   such  compliance,  though  the  recital  did  not   affirm  it. 


TOWN  OF  COLOMA  V.   EAVES.  229 

This  position  was  supported  by  reference  to  The  Royal  British  Bank 
V.  Torquand,  6  Ell.  &  Bl.  327,  a  case  in  the  Exchequer  Chamber, 
which  fully  sustains  it,  and  the  decision  in  which  was  concurred  in 
by  all  the  judges.  This  position  taken  in  Knox  v.  Aspinwall  has 
\)een  more  than  once  reaffirmed  in  this  court.  It  was  in  Moran  v. 
Miami  Countij^  2  Black,  732 ;  in  Mercer  County  v.  Hackett,  1  WalL 
<3;  in  Supervisors  v.  Schenk,  5  id.  784;  and  in  Mayor  v.  Muscatine, 
I  id.  384.  It  has  never  been  overruled ;  and,  whatever  doubts  may 
nave  been  suggested  respecting  its  correctness  to  the  full  extent  to 
which  it  has  sometimes  been  announced,  there  should  be  no  doubt  of 
the  entire  correctness  of  the  other  rule  asserted  in  Knox  v.  Aspinwall. 
That,  we  think,  has  been  so  firmly  seated  in  reason  and  authority, 
that  it  cannot  be  shaken.  What  it  is  has  been  well  stated  in  sect. 
419  of  Dillon  on  Munic.  Corp.  After  a  review  of  the  decisions  of 
this  court,  the  author  remarks,  "  If,  upon  a  true  construction  of  the 
legislative  enactment  conferring  the  authority  (viz.,  to  issue  munici- 
pal bonds  upon  certain  conditions),  the  corporation,  or  certain  offlcers^ 
or  a  given  body  or  tribunal,  are  invested  with  power  to  decide 
whether'  the  condition  preCecTent  has  been  complied  With,  then  it 
may  well  be  that  their  determination  of  a  matter  in  j^ais,  which  they 
are  authorized  to  decide,  w"ll,  in  favor  of  the  bondholder  for  value, 
"biii'l  tie  corporation."  This  is  a  very  cautious  statement  of  the 
doctiiu'j.  It  may  be  restated  in  a  slightly  different  form.  Where 
legislative  authoritv  has  beer  given  tc  a  municipality',  or  to  its  officers, 
tx>  subscribe  tor  the  stock  of  a  railroad  company,  and  to  issue  munici- 
pal bonds  in  payment,  but  only  on  some  precedent  condition,  such 
as  a  popular  vote  favoring  the  subscription,  and  where  it  may  be 
gathered  from  the  legislative  enactment  that  the  officers  of  the_ 
municipality  were  invested  with  power  to  decide  whether  the  condl- 
tioh  precedent  has  been  complied  with,  thei*-  recital  that  it  has  been^ 
made  la  the  bonds  issued  by  them  and  neld  by  a  ho7ia  fide  purchaser, 
■Js'.  conclusive  of  thf  fact,  and  binding  upon  the  municipality^  for 
the  recital  is  itself  a  decision  of  the  fact  by  the  appointed  tribunal. 
In  Bissell  v.  Jeffersonville,  24  How.  287,  it  appeared  that  the  common 
council  of  the  city  were  authorized  by  the  legislature  to  subscribe  for 
stock  in  a  railroad  company;  and  to  issue  bonds  for  the  subscription, 
on  the  petition  of  three-fourths  of  the  legal  voters  of  the  city.  The 
council  adopted  a  resolution  to  subscribe,  reciting  in  the  preamble 
that  more  than  three-fourths  of  the  legal  voters  had  petitioned  for  it, 
and  authorized  the  mayor  and  city  clerk  to  sign  and  deliver  bonds  for 
the  sum  subscribed.  The  bonds  recited  that  they  were  issued  by 
authority  of  the  common  council,  and  that  three-fourths  of  the  legal 
voters  had  petitioned  for  the  same,  as  required  by  the  charter.  In  a 
suit  subsequently  brought  by  an  innocent  holder  for  value  to  recover 
the  amount  of  unpaid  coupons  for  interest,  it  was  held  inadmissible 
for  the  defendants  to  show  that  three-fourths  of  the  legal  voters  of 
the  city  had  not  signed  the  petition  for  the  stock  subscription.     A 


230  TOWN    OF   COLOMA   V.    EAVES. 

similar  ruling  was  made  in   Van  Hostrop  v.  Madison  City^  1  Wall. 
291,  and  in  Mercer  Count//  v.  Hackett,  id.  83. 

The  same  principle  has  recently  been  asserted  in  this  court  after 
very  grave  consideration,  and  it  must  be  considered  as  settled.  In 
St.  Joseph's  Toivnshii^  v.  Rogers.,  16  Wall.  644,  it  is  stated  thus:  — 

"  Power  to  issue  bonds  to  aid  in  the  construction  of  a  railroad  is 
frequently  conferred  upon  a  municipality  in  a  special  manner,  or 
subject  to  certain  regulations,  conditions,  or  qualifications;  but  if  it 
appears  by  their  recitals  that  the  bonds  were  issued  in  conformity 
with  these  regulations,  and  pursuant  to  those  conditions  and  quali- 
fications, proof  that  any  or  all  of  these  recitals  were  incorrect  will 
not  constitute  a  defence  for  the  corporation  in  a  suit  on  the  bonds  or 
coupons,  if  it  appears  that  it  was  the  sole  province  of  the  municipal 
officers  who  executed  the  bonds  to  decide  whether  or  not  there  had 
been  an  antecedent  compliance  with  the  regulation  condition,  or 
qualification,  which  it  is  alleged  was  not  fulfilled." 

There  is  nothing  in  the  case  of  Marsh  v.  Fulton.,  10  Wall.  675,  to 
which  we  have  been  referred,  at  all  inconsistent  with  the  rule  thus 
asserted.  In  that  case,  there  were  no  recitals  in  the  bonds;  and 
there  was  no  decision  that  the  conditions  precedent  to  a  subscription, 
or  to  the  gift  of  authority  to  subscribe,  had  been  performed.  The 
question,  was,  therefore,  open. 

What  we  have  said  disposes  of  the  present  case  without  the  neces- 
sity of  particular  consideration  of  the  matters  urged  in  the  argument 
of  the  defendant  below.  It  was  inadmissible  to  show  what  was 
attempted  to  be  shown;  and,  even  if  it  had  been  admissible,  the  effort 
to  assimilate  the  case  to  Marsh  v.  Fulton  would  fail.  There  the 
subscription  was  for  the  stock  of  a  different  corporation  from  that  for 
which  the  people  had  voted :  here  it  was  not. 

Judgment  affirmed. 

Mr.  Justice  Bradley  delivered  the  following  concurring  opinion:  — 
I  dissent  from  the  opinion  of  the  court  in  this  case,  so  far  as  it 
may  be  construed  to  reaflSrm  the  first  point  asserted  in  the  case  of 
Knox  County  v.  Aspinwall ;  to  wit,  that  the  mere  execution  of  a 
bond  by  officers  charged  with  the  duty  of  ascertaining  whether  a 
condition  ])recedent  has  been  performed  is  conclusive  proof  of  its 
performance.  If,  when  the  law  requires  a  vote  of  tax-payers,  before 
bonds  can  be  issued,  the  supervisor  of  a  township,  or  the  judge  of 
probate  of  a  county,  or  other  oflflcer  or  magistrate,  is  the  officer 
designated  to  ascertain  whether  such  vote  has  been  given,  and  is  also 
the  proper  officer  to  execute,  and  who  does  execute,  the  bonds,  and 
if  the  bonds  themselves  contain  a  statement  or  recital  that  such  vote 
has  been  given,  then  the  bona  fide  purchaser  of  the  bonds  need  go 
back  no  farther.  He  has  a  right  to  rely  on  the  statement  as  a  deter- 
mination of  the  question.  But  a  mere  execution  and  issue  of  the 
bonds  without  such  recital  is  not,  in  my  judgment,  conclusive.     It 


HUMBOLDT   TOWNSHIP   V.  LONG.  231 

aoay  be  jmma  facie  sufficient;  but  the  contrary  may  be  shown. 
This  seems  to  me  to  be  the  true  distinction  to  be  taken  on  this  sub- 
ject; and  I  do  not  think  that  the  contrary  has  ever  been  decided  by 
this  court.  There  have  been  various  dicta  to  the  contrary ;  but  the 
cases,  when  carefully  examined,  will  be  found  to  have  had  all  the 
prerequisites  necessar}^  to  sustain  the  bonds,  according  to  my  view 
of  the  case.  This  view  was  distinctly  announced  by  this  court  in 
the  case  of  Lynde  v.  The  County  of  Winnebago^  16  Wall.  13.  In 
the  case  now  under  consideration,  there  is  a  sufficient  recital  in  the 
bond  to  show  that  the  proper  election  was  held  and  the  proper  vote 
given;  and  the  bond  was  executed  by  the  officers  whose  duty  it  was 
to  ascertain  these  facts.  On  this  ground,  and  this  alone,  I  concur  in 
the  judgment  of  the  court. 

Mr.  Justice  Miller,  Mr.  Justice  Davis,  and  Mr.  Justice  Field, 
dissented. 


MILLER,  J.,    IN  HUMBOLDT   TOWNSHIP  v.    LONG. 

1875.     92  U.  S.  642,  pp.  646-651. 

Mr.  Justice  Miller,  with  whom  concurred  Mr.  Justice  Davis 
and  Mr.  Justice  Field,  dissenting. 

We  have  had  argued  and  submitted  to  us,  during  the  present  term, 
some  ten  or  twelve  cases  involving  the  validity  of  bonds  issued  in 
aid  of  railroads  by  counties  and  towns  in  different  States. 

They  were  reserved  for  decision  until  a  late  day  in  the  term ;  and 
the  opinions  having  been  delivered  in  all  of  them  within  the  last  few 
weeks,  I  have  waited  for  what  I  have  thought  proper  to  say  by  way 
of  dissent  to  some  of  them  until  the  last  of  these  judgments  are 
announced,  as  they  have  been  to-day. 

I  understand  these  opinions  to  hold,  that,  when  the  constitution  of 
the  State,  or  an  act  of  its  legislature,  imperatively  forbids  these 
municipalities  to  issue  bonds  in  aid  of  railroads  or  other  similar 
enterprises,  all  such  bonds  issued  thereafter  will  be  held  void.  But, 
if  there  exists  any  authority  whatever  to  issue  such  bonds,  no  re- 
strictions, limitations,  or  conditions  imposed  by  the  legislature  in 
the  exercise  of  that  authority  can  be  made  effectual,  if  they  be  disre- 
garded by  the  officers  of  those  corporations. 

That  such  is  the  necessary  consequence  of  the  decision  just  read, 
in  the  cases  from  the  State  of  Kansas,  is  too  obvious  to  need  argu- 
ment or  illustration.  That  State  had  enacted  a  general  law  on  the 
subject  of  subscriptions  by  counties  and  towns  to  aid  in  the  con- 
struction of  railroads,  in  which  it  was  declared  that  no  bonds  should 
be  issued  on  which  the  interest  required  an  annual  levy  of  a  tax 
beyond  one  per  cent  of  the  value  of  the  taxable  property  of  the 
municipality  which  issued  them. 


232  HUMBOLDT   TOWNSHIP   V.   LONG. 

In  the  cases  under  consideration  this  provision  of  the  statute  was 
wholly  disregarded.  I  am  not  sure  that  the  relative  amount  of  the 
bonds,  and  of  the  taxable  property  of  the  towns,  is  given  in  these 
cases  with  exactness;  but  I  do  know  that  in  some  of  the  cases  tried 
before  me  last  summer  in  Kansas  it  was  shown  that  the  first  and  only 
issue  of  such  bonds  exceeded  in  amount  the  entire  value  of  the  tax- 
able property  of  the  town,  as  shown  by  the  tax-list  of  the  year  pre- 
ceding the  issue. 

This  court  holds  that  such  a  showing  is  no  defence  to  the  bonds, 
notwithstanding  the  express  prohibition  of  the  legislature. 

It  is  therefore  clear  that,  so  long  as  this  doctrine  is  upheld,  it 
is  not  in  the  power  of  the  legislature  to  authorize  these  corporations 
to  issue  bonds  under  any  special  circumstances,  or  with  any  limitation 
in  the  use  of  the  power,  which  may  not  be  disregarded  with  impunity. 

It  may  be  the  wisest  policy  to  prevent  the  issue  of  such  bonds  alto- 
gether. But  it  is  not  for  this  court  to  dictate  a  policy  for  the  States 
on  that  subject. 

The  result  of  the  decision  is  a  most  extraordinary  one.  It  stands 
alone  in  the  construction  of  powers  specifically  granted,  whether  the 
source  of  the  power  be  a  State  constitution,  an  act  of  the  legisla- 
ture, a  resolution  of  a  corporate  body,  or  a  written  authority  given 
by  an  individual.  It  establishes  that  of  all  the  class  of  agencies, 
public  or  private,  whether  acting  as  officers  whose  powers  are  created 
by  statute  or  by  other  corporations  or  by  individuals,  and  whether 
the  subject-matter  relates  to  duties  imposed  by  the  nation,  or  the 
State,  or  by  private  corporations,  or  by  individuals,  on  this  one  class 
of  agents,  and  in  regard  to  the  exercise  of  this  one  class  of  powers 
alone,  must  full,  absolute,  and  uncontrollable  authority  be  conferred 
on  them,  or  none.  In  reference  to  municipal  bonds  alone,  the  law  is, 
that  no  authority  to  issue  them  can  be  given  which  is  capable  of  any 
effectual  condition  or  limitation  as  to  its  exercise. 

The  power  of  taxation,  which  has  repeatedly  been  stated  by  this 
court  to  be  the  most  necessary  of  all  legislative  powers,  and  least 
capable  of  restriction,  may  by  positive  enactments  be  limited.  If 
the  constitution  of  a  State  should  declare  that  no  tax  shall  be  levied 
exceeding  a  certain  per  cent  of  the  value  of  the  property  taxed,  any 
statute  imposing  a  larger  rate  would  be  void  as  to  the  excess.  If 
the  legislature  should  say  that  no  municipal  corporation  should  assess 
a  tax  beyond  a  certain  per  cent,  the  courts  would  not  hesitate  to  pro- 
nounce a  levy  in  excess  of  that  rate  void. 

But  when  the  legislature  undertakes  to  limit  the  power  of  creating 
a  debt  by  these  corporations,  which  will  require  a  tax  to  pay  it  in 
excess  of  that  rate  of  taxation,  this  court  says  there  is  no  power  to 
do  this  effectually.  No  such  principle  has  ever  been  applied  by  this 
court,  or  by  any  other  court,  to  a  State,  to  the  United  States,  to  pri- 
vate corporations,  or  to  individuals.  I  challenge  the  production  of  a 
case  in  which  it  has  been  so  applied. 


HUMBOLDT   TOWNSHIP   V.   LONG.  233 

In  the  Floyd  Acceptance  Cases,  7  Wall.  666,  in  which  the  Secre- 
tary of  War  had  accepted  time-drafts  drawn  on  him  by  a  contractor, 
which,  being  negotiable,  came  into  the  bauds  of  bona  fide  purchasers 
before  due,  we  held  that  they  were  void  for  want  of  authority  to 
accept  them.  And  this  case  has  been  cited  by  this  court  more  than 
once  without  question.  No  one  would  think  for  a  moment  of  holding 
that  a  power  of  attorney  made  by  an  iudividual  cannot  be  so  limited 
as  to  make  any  one  dealing  with  the  agent  bound  by  the  limitation, 
or  that  the  agent's  construction  of  his  power  bound  the  principal. 
Nor  has  it  ever  been  contended  that  an  officer  of  a  private  corpora- 
tion can,  by  exceeding  his  authority,  when  that  authority  is  express, 
is  open  and  notorious,  bind  the  corporation  which  he  professes  to 
represent. 

The  simplicity  of  the  device  by  which  this  doctrine  is  upheld  as  to 
municipal  bonds  is  worthy  the  admiration  of  all  who  wish  to  profit 
by  the  frauds  of  municipal  officers. 

It  is,  that  wherever  a  condition  or  limitation  is  imposed  upon  the 
power  of  those  officers  in  issuing  bonds,  they  are  the  sole  and  final 
judges  of  the  extent  of  those  powers.  If  they  decide  to  issue  them, 
the  law  presumes  that  the  conditions  on  which  their  powers  depended 
existed,  or  that  the  limitation  upon  the  exercise  of  the  power  has 
been  complied  with;  and  especially  and  particularly  if  they  make  a 
false  recital  of  the  fact  on  which  the  power  depends  in  the  paper 
they  issue,  this  false  recital  has  the  effect  of  creating  a  power  which 
had  no  existence  without  it. 

This  remarkable  result  is  always  defended  on  the  ground  that  the 
paper  is  negotiable,  and  the  purchaser  is  ignorant  of  the  falsehood. 
But  in  the  Floyd  Acceptance  Cases  this  court  held,  and  it  was  neces- 
sary to  hold  so  there,  that  the  inquiry  into  the  authority  by  which 
negotiable  paper  was  issued  was  just  the  same  as  if  it  were  not  nego- 
tiable, and  that  if  no  such  authority  existed  it  could  not  be  aided  by 
giving  the  paper  that  form.  In  County  Bond  Cases  it  seems  to  be 
otherwise. 

In  that  case  the  court  held  that  the  party  taking  such  paper  was 
bound  to  know  the  law  as  it  affected  the  authority  of  the  officer  who 
issued  it.  In  Coimty  Bond  Cases,  while  this  principle  of  law  is  not 
expressly  contradicted,  it  is  held  that  the  paper,  though  issued 
without  authority  of  law,  and  in  opposition  to  its  express  provisions, 
is  still  valid. 

There  is  no  reason,  in  the  nature  of  the  condition  on  which  the 
power  depends  in  these  cases,  why  any  purchaser  should  not  take 
notice  of  its  existence  before  he  buys.  The  bonds  in  each  case 
were  issued  at  one  time,  as  one  act,  of  one  date,  and  in  payment  of 
one  subscription.  All  this  was  a  matter  of  record  in  the  town  where 
it  was  done. 

So,  also,  the  valuation  of  all  the  property  of  the  town  for  the  taxa- 
tion of  the  year  before  the  bonds  were  issued  is  of  record  both  in  that 


234  HUMBOLDT   TOWNSHIP  V.   LONG. 

town  and  in  the  office  of  the  clerk  of  the  county  in  which  the  town 
is  located.  A  purchaser  had  but  to  write  to  the  township-clerk 
or  the  county-clerk  to  know  precisely  the  amount  of  the  issue  of 
bonds  and  the  value  of  the  taxable  property  within  the  township. 
In  the  matter  of  a  power  depending  on  these  facts,  in  any  other 
class  of  cases,  it  would  be  held  that,  before  buying  these  bonds, 
the  purchaser  must  look  to  those  matters  on  which  their  validity 
depended. 

They  are  all  public,  all  open,  all  accessible,  —  the  statute,  the 
ordinance  for  their  issue,  the  latest  assessment-roll.  But  in  favor 
of  a  purchaser  of  municipal  bonds  all  this  is  to  be  disregarded,  and 
a  debt  contracted  without  authority,  and  in  violation  of  express 
statute,  is  to  be  collected  out  of  the  property  of  the  helpless  man 
who  owns  any  in  that  district. 

I  say  helpless  advisedly,  because  these  are  not  his  agents.  They 
are  the  officers  of  the  law,  appointed  or  elected  without  his  consent, 
acting  contrai-y,  perhaps,  to  his  wishes. 

Surely  if  the  acts  of  any  class  of  officers  should  be  valid  only  when 
done  in  conformity  to  law,  it  is  those  who  manage  the  affairs  of 
towns,  counties,  and  villages,  in  creating  debts  which  not  they,  but 
the  property-owners,  must  pay. 

The  original  case  on  which  this  ruling  is  based  is  Knox  County  v. 
Asplnwall,  21  How.  539.  It  has,  I  admit,  been  frequently  cited  and 
followed  in  this  court  since  then,  but  the  reasoning  on  which  it 
was  founded  has  never  been  examined  or  defended  until  now:  it  has 
simply  been  followed.  The  case  of  the  Town  of  Coloma  v.  JEaves^ 
92  U.  S.  484,  is  the  first  attempt  to  defend  it  on  principle  that  has 
ever  been  made.  How  far  it  has  been  successful  I  will  not  undertake 
to  say.  Of  one  thing  I  feel  very  sure,  that  if  the  English  judges  who 
decided  the  case  of  The  Royal  British  Bank  v.  Tarquand^  on  the 
authority  of  which  Knox  County  v.  Aspinwall  was  based,  were  here 
to-day,  they  would  be  filled  with  astonishment  at  this  result  of  their 
decision. 

The  bank  in  that  case  was  not  a  corporation.  It  was  a  joint-stock 
company  in  the  nature  of  a  partnership.  The  action  was  against 
the  manager  as  such,  and  the  question  concerned  his  power  to  borrow 
money.  This  power  depended  in  this  particular  case  on  a  resolution 
of  the  company.  The  charter  or  deed  of  settlement  gave  the  power, 
and,  when  it  was  exercised,  the  court  held  that  the  lender  was  not 
bound  to  examine  the  records  of  the  company  to  see  if  the  resolution 
had  been  legally  sufficient. 

That  was  a  private  partnership.  Its  papers  and  records  were  not 
open  to  public  inspection.  The  manager  and  directors  were  not  offi- 
cers of  the  law,  whose  powers  were  defined  by  statute,  nor  was  the 
existence  of  the  condition  on  which  the  power  depended  to  be  ascer- 
tained by  the  inspection  of  public  and  official  records  made  and  kept 
by  officers  of  the  law  for  that  very  purpose. 


BANK   OF   TOLEDO   V.   PORTER  TOWNSHIP   TRUSTEES.  235 

In  all  these  material  circumstances  that  case  dififered  widely  from 
those  now  before  us. 

It  is  easy  to  sa}^,  and  looks  plausible  when  said,  that  if  municipal 
corporations  put  bonds  on  the  market,  they  must  pay  them  when  they 
become  due. 

But  it  is  another  thing  to  say  that  when  an  officer  created  by  the 
law  exceeds  the  authority  conferred  upon  him,  and  in  open  violation 
of  law  issues  these  bonds,  the  owner  of  property  lying  within  the 
corporation  must  pay  them,  though  he  had  no  part  whatever  in  their 
issue,  and  no  power  to  prevent  it. 

This  latter  is  the  true  view  of  the  matter.  As  the  corporation  could 
only  exercise  such  power  as  the  law  conferred,  the  issuing  of  the 
bonds  was  not  the  act  of  the  corporation.  It  is  a  false  assumption  to 
say  that  the  corporation  put  them  on  the  market. 

If  one  of  two  innocent  persons  must  suffer  for  the  unauthorized 
act  of  the  township  or  county  officers,  it  is  clear  that  he  who  could, 
before  parting  with  his  money,  have  easily  ascertained  that  they 
were  unauthorized,  should  lose,  rather  than  the  property-holder,  who 
might  not  know  any  thing  of  the  matter,  or,  if  he  did,  had  no  power 
to  prevent  the  wrong. 


NORTHERN  BANK  OF  TOLEDO  v.   PORTER  TOWNSHIP 

TRUSTEES. 

1884.     110  U.  S.  608.1 

Error  to  U.  S.  Circuit  Court  for  Northern  District  of  Ohio.  Ver- 
dict below  for  defendants. 

This  was  an  action  upon  bonds  purporting  to  be  issued  by  Porter 
Township  in  payment  of  a  subscription  to  the  stock  of  the  Spring- 
field, Mount  Vernon,  and  Pittsburgh  R.  R.  Co.  By  the  charter  of  said 
company,  granted  March  21st,  1850,  power  was  given  to  the  county 
commissioners  to  subscribe  for  stock  if  authorized  by  vote  of  the 
electors ;  and,  if  the  county  commissioners  should  not  be  authorized 
by  such  a  vote,  then  the  township  trustees  were  empowered  to  sub- 
scribe if  authorized  by  vote  of  the  qualified  voters  of  the  township. 

Up  to  March  2,oth,  18.51,  neither  Delaware  County,  nor  Porter 
Township  in  Delaware  County,  had  subscribed,  or  voted  to  subscribe 
to  the  stock  of  the  railroad  company. 

By  an  act  passed  March  25th,  1851,  county  commissioners  of  the 
several  counties,  through  or  into  which  the  Springfield  and  Mans- 
field Railroad  shall  be  located,  were  authorized  to  cause  the  question 
of  subscription  provided  for  in  the  act  of  ^Nlarch  21st,  1850,  *'  to  be 
submitted  to  the  qualified  voters  of  their  respective  counties,  at  a 
special  election,  to  be  by  them  called  for  that  purpose,  at  any  time 

1  Statement  abridged.     Portions  of  opinion  omitted.  —  Ed. 


236  BANK    OF   TOLEDO   V.    POETER   TOWNSHIP   TRUSTEES. 

thereafter,  having  first  given  twenty  days'  previous  notice;"  further, 
that  "  if  the  commissioners  of  any  of  the  counties  aforesaid  shall  7iot 
be  authorized  by  the  vote  as  aforesaid  to  subscribe  to  the  capital 
stock  of  said  company  on  behalf  of  their  respective  counties,  then, 
and  in  that  case,  the  question  of  subscription  by  township  trustees 
provided  for  in  the  same  act  incorporating  said  railroad  company 
shall  be  submitted  to  the  people  of  the  respective  townships,  at  a 
special  election,  to  be  called  as  provided  for  in  the  first  section  of  this 
act"  —  such  elections  to  be  conducted  in  all  respects  in  the  same 
manner  provided  for  in  the  charter  of  the  company,  except  as  modified 
by  the  said  act  of  March  25th,  1851. 

On  the  15th  day  of  April,  1851,  the  commissioners  of  Delaware 
County,  Ohio,  passed  an  order  submitting  to  the  voters  of  that  county, 
at  a  special  election  to  be  held  on  the  17th  day  of  June  thereafter,  a 
proposition  to  subscribe  the  sum  of  $50,000  to  the  capital  stock  of  the 
Springfield  and  Mansfield  Railroad  Company,  a  corporation  created 
under  the  laws  of  that  State,  and  whose  name  was  subsequently 
changed  to  that  of  the  Springfield,  Mount  Vernon  and  Pittsburgh 
Railroad  Company.  This  proposition  was  approved  by  the  electors, 
and  subsequently,  August  4th,  1851,  the  county  commissioners  made 
a  subscription  of  the  amount  voted,  payable  in  bonds  of  the  county. 

After  the  vote  in  favor  of  a  county  subscription  of  $50,000,  and 
two  days  before  the  formal  subscription  in  its  behalf  by  the  county 
commissioners,  that  is,  on  the  2d  day  of  August,  1851,  the  trustees 
of  Porter  Township,  in  Delaware  County,  passed  an  order  submitting 
to  the  voters  of  that  township,  at  a  special  election  to  be  held  on 
the  30th  day  of  August  thereafter,  a  proposition  for  a  subscription  of 
not  exceeding  $10,000  and  not  less  than  $8,000  to  the  capital  stock 
of  the  same  company,  payable  in  township  bonds,  upon  the  condition 
that  the  road  should  be  permanently  located  and  established  through 
that  township.  The  proposition  was  approved  by  the  voters,  and 
subsequently,  on  May  6th,  1853,  township  bonds  for  the  amount 
voted  with  interest  coupons  attached  were  issued.  They  were  made 
payable  to  the  railroad  company  or  its  assignees,  and  were  in  the- 
customary  form  of  negotiable  municipal  bonds.  Each  one  recited 
that  it  was  "  issued  in  part  payment  of  a  subscription  of  one  hundred 
and  sixty  shares  of  $50  each  to  the  capital  stock  of  the  said  Spring- 
field, Mount  Vernon  and  Pittsburgh  Railroad  Company,  made  by  the 
said  township  of  Porter  in  pursuance  of  the  provisions  of  the  several 
acts  of  the  general  assembly  of  the  State  of  Ohio  and  of  a  vote  of  the 
((ualified  electors  of  said  township  of  Porter  taken  in  pursuance 
thereof. " 

In  behalf  of  the  plaintiff  in  error,  the  present  holder  of  the  bonds, 
it  is  claimed  that  there  was  statutory  authority  for  their  issue,  and 


BANK    OF   TOLEDO   V.   PORTER   TOWNSHIP   TRUSTEES.  237 

that,  apart  from  any  question  of  such  authority,  the  township  is 
estopped  by  their  recitals,  and  by  numerous  payments  of  annual  in- 
terest, from  disputing  its  liability. 

E.  W.  Kittredge^  for  plaintiff  in  error. 

W.  M.  Ramsey^  for  defendant  in  error. 

Harlan,  J. 

The  general  assembly  of  Ohio,  it  must  be  presumed,  knew  at  the 
passage  of  the  act  of  March  25th,  1851,  what  particular  counties  and 
townships  had  then  made  subscriptions  to  the  stock  of  this  railroad 
company.  That  act  was  passed  with  reference  to  the  situation  as  it 
actually  was.  When,  therefore,  upon  the  basis  of  non-authorization 
of  the  commissioners  to  make  a  county  subscription,  it  was  provided, 
in  the  act  of  March  25th,  1851,  that  "  then,  and  in  that  case"  town- 
ships might  subscribe,  it  must  have  been  intended  that  the  authority 
of  any  township,  which  had  not  then  acted,  to  subscribe  should  exist 
only  where,  after  the  passage  of  the  latter  act,  a  county  subscription 
had  been  negatived  either  by  a  vote  of  the  people  or  by  the  refusal 
or  failure  of  the  commissioners  within  a  reasonable  time  to  submit 
the  question  to  a  popular  vote.  If  this  be  not  so,  then  Porter  Towri^ 
ship  would  have  been  authorized  in  its  discretion  to  vote  on  a  propo- 
sition to  subscribe  either  at  the  annual  election  in  April,  1851,  or  at 
any  special  election  thereafter  held,  notwithstanding  the  county  mayj 
have  previously  made  a  subscription.  But  such  we  cannot  suppose 
to  be  a  correct  interpretation  of  the  statute.  Consequently,  from  and, 
after  March  25th,  1851,  it  was  apparent  from  the  terms  of  the  act  of 
that  date  that  Porter  Township  had  no  legal  authority  to  make  a 
subscription  of  stock,  except  in  the  contingency  —  which  the  town- 
ship could  not  control,  but  of  which  it  and  all  others  were  bound  to 
take  notice  —  that  the  commissioners  had  not  been  authorized  to  sub- 
scribe for  the  county.  So  far  from  that  contingency  ever  arising, 
the  commissioners  (before  the  township  election  was  called)  had 
been  authorized  by  popular  vote  to  subscribe,  and  they  did  in  fact 
subscribe,  the  sum  of  $50,000.  It  cannot,  therefore,  be  said  that  the 
commissioners  were  not  authorized  by  a  vote  of  the  county  to  subscribe 
at  the  time  Porter  Township  voted;  consequently,  the  latter  was 
without  legal  authority  to  make  a  subscription.  This  conclusion  is 
satisfactory  to  our  minds,  and  is,  besides,  sustained  by  the  decision 
of  the  Supreme  Court  of  Ohio  in  Hojyple  v.  Trustees  of  Broivn  Toion- 
ship  in  Delaware  County,  13  Ohio  St.  311,  reaffirmed  in  Hopple  v. 
Hippie,  33  Ohio  St.  116. 

It  is,  however,  contended,  that  by  the  settled  doctrines  of  this 
court,  the  township  is  estopped  by  the  recitals  of  the  bonds  in  suit, 
to  make  its  present  defence.  The  bonds,  upon  their  face,  purport  to 
have  been  issued  "  in  pursuance  of  the  provisions  of  the  several  acts 
of  the  general  assembly  of  the  State  of  Ohio,  and  of  a  vote  of  the 
qualified   electors   in   said   township  of   Porter,  X^k^n  in  pursuance 


238  BANK   OF   TOLEDO   V.   PORTER   TOWNSHIP   TRUSTEES. 

thereof."  These  recitals,  counsel  argue,  import  a  compliance,  in  all 
respects,  with  the  law,  and,  therefore,  the  township  will  not  be 
allowed,  against  a  bona  fide  holder  for  value,  to  say  that  the  circum- 
stances did  not  exist  which  authorized  it  to  issue  the  bonds.  It  is 
not  to  be  denied  that  there  are  general  expressions  in  some  former 
opinions  which,  apart  from  their  special  facts,  would  seem  to  afford 
support  to  this  proposition  in  the  general  terms  in  which  it  is  pre- 
sented. But  this  court  said  in  Cohens  v.  Virginia,  6  Wheat.  264, 
and  again  in  Carroll  v.  Lessee  of  Carroll,  16  How.  275,  287,  that  it 
was  "  a  maxim  not  to  be  disregarded  that  general  expressions,  in 
every  opinion,  are  to  be  taken  in  connection  with  the  case  in  which 
those  expressions  are  used.  If  they  go  beyond  the  case,  they  may 
be  respected,  but  ought  not  to  control  the  judgment  in  a  subsequent 
suit  when  the  very  point  is  presented  for  decision."  An  examination 
of  the  cases,  in  which  those  general  expressions  are  found,  will  show 
that  the  court  has  never  intejaded  to  n.dji]dpe-±lia.t,-morn  ■j:ao.i4^.aJs  by^ 
the  officers  of  a  municipal  corporation  in  bonds  issued  in  aid  of  a 
railroad  cof|)oration  precluded  an  inquiry,  even  wliere -the  rights  of  a 
/'^oiHi  fldr  holder  were  involved,  as  to  the  existence  of  legislative 
authority  to  issue  them. 

"li. "reference  to  a  few  of  the  adjudged  cases  will  serve  to  illustrate 
the  rule  which  has  controlled  the  cases  involving  the  validity  of 
municipal  bonds.  In  Commissioners  of  Knox  County  v.  Asjnnwall, 
21  How.  539,  power  was  given  to  county  commissioners  to  subscribe 
stock  to  be  paid  for  by  county  bonds,  in  aid  of  a  railroad  corporation, 
the  power  to  be  exercised  if  the  electors,  at  an  election  duly  called, 
should  approve  the  subscription.  It  was  adjudged  that  as  the  power 
existed,  and  since  the  statute  committed  to  the  board  of  commis- 
sioners authority  to  decide  whether  the  election  was  properly  held,  and 
whether  the  subscription  was  approved  by  a  majority  of  the  electors, 
the  recital  in  bonds  executed  by  those  commissioners,  that  they  were 
issued  in  pursuance  of  the  statute  giving  the  power,  estopped  the 
county  from  alleging  or  proving,  to  the  prejudice  of  a  bona  fide 
holder,  that  requisite  notices  of  the  election  had  not  been  given.  In 
Dlssell  v.  City  of  Jeffersonville,  24  How.  287,  the  court  found  that 
there  was  power  to  issue  the  bonds,  and  that  after  they  were  issued 
and  delivered  to  the  railroad  company  it  was  too  late,  as  against  a 
bona  fide  holder,  to  call  in  question  the  determination  of  the  facts, 
which  the  law  prescribed  as  the  basis  of  the  exercise  of  the  power 
granted,  and  which  the  city  authorities  were  authorized  and  required 
to  determine  before  bonds  were  issued. 

Pr(>bal)ly  the  fullest  statement  of  the  settled  doctrine  of  this  court 
is  found  in  Town  of  Colonia  v.  Eaves,  92  U.  S.  484.  In  that  case 
the  authority  to  make  the  subscription  was  made,  by  the  statute, 
to  depend  upon  the  result  of  the  submission  of  the  question  to  a 
popular  vote,  and  its  approval  by  a  majority  of  the  legal  votes  cast. 
But  whether  the  statute  in  these  particulars  was  complied  with,  was 


BANK   OF  TOLEDO   V.   PORTEK   TOWNSHIP  TRUSTEES. 

left  to  the  decision  of  certain  persons  who  held  official  relations  with 
the  municipality  in  whose  behalf  the  proposed  subscription  was  to 
be  made.     It  was  in  reference  to  such  a  case  that  the  court  said:     " 
"  When  legislative  authority  has  been  given  to  a  municipality,  or  to 
its  officers,  to  subscribe  to  the  stock  of  a  railroad  company,  and  to 
issue  municipal  bonds  in  payment,  but  only  on  some  precedent  con-     ' 
dition,  such  as  a  popular  vote  favoring  the  subscription,  and  wher^'T' 
it  may  be  gathered  from  the  legislative  enactment  that  the  officers  or^  C 
the  municipality  were    invested  with   power  to  decide- whether   the      ( 
condition  precedent  has  been  complied  with,  their  recital  that  it  has 
been,  made  in  the  bonds  issued  by  them  and  held  by  a  bona  fide  pur- 
chaser, is  conclusive  of  the  fact  and  binding  upon  the  municipality; 
for  the   recital   is    itself   a  decision   of  the   fact  by  the   appointed 
tribunal."     This  doctrine  was  reaffirmed  in  Buchanan  v.  Litchfield^ 
102  U.  S.  278,  and  in  other  cases,  and  we  perceive  no  just  ground  to 
doubt  its  correctness,  or  to  regard  it  as  now  open  to  question  in  this 
court. 

But  we  are  of  opinion  that  the  rule  as  thus  stated  does  not  support 
the  position  which  counsel  for  plaintiff  in  error  take  in  the  present 
case.  The  adjudged  cases,  examined  in  the  light  of  their  special 
circumstances,  show  that  the  facts  which  a  municipal  corporation, 
issuing  bonds  in  aid  of  the  construction  of  a  railroad,  was  not  per- 
mitted, against  a  bona  fide  holder,  to  question,  in  face  of  a  recital 
in  the  bonds  of  their  existence,  were  those  connected  with  or  growing 
out  of  the  discharge  of  the  ordinary  duties  of  such  of  its  officers  as 
were  invested  with  authority  to  execute  them,  and  which  the  statute 
conferring  the  power  made  it  their  duty  to  ascertain  and  determine 
before  the  bonds  were  issued;  not  merely  for  themselves,  as  the 
ground  of  their  own  action,  in  issuing  the  bonds,  but,  equally,  as 
authentic  and  final  evidence  of  their  existence,  for  the  information 
and  action  of  all  others  dealing  with  them  in  reference  to  it.  Such  is 
not  the  case  before  us.  Had  the  statutes  of  Ohio  conferred  upon  a 
township  in  Delaware  County  authority  to  make  a  subscription  to  the 
stock  of  this  company,  upon  the  approval  of  the  voters  at  an  election 
previously  held,  then  a  recital,  by  its  proper  officers,  such  as  is  found 
in  the  bonds  in  suit,  would  have  estopped  the  township  from  proving 
that  no  election  was  in  fact  held,  or  that  the  election  was  not  ca%d 
and  conducted  in  the  mode  prescribed  by  law;  for  in  such  case  it 
would  be  clear  that  the  law  had  referred  to  the  officers  of  the  town- 
ship, not  only  the  ascertainment,  but  the  decision  of  the  facts 
involved  in  the  mode  of  exercising  the  power  granted.  But  in  this 
case,  as  we  have  seen,  power  in  townships  to  subscribe  did  not  come 
into  existence,  that  is,  did  not  exist,  except  where  the  county  com- 
missioners had  not  been  authorized  to  make  a  subscription.  "Whether 
they  had  not  been  so  authorized,  that  is,  whether  the  question  of 
subscription  had  or  not  been  submitted  to  a  county  vote,  or  whether 
the  county  commissioners  had  failed  for  so  long  a  time  to  take  the 


\ 


•c 


H 


■'G 


u 


240  BANK   OF   TOLEDO   V.   PORTER  TOWNSHIP   TRUSTEES. 

sense  of  the  people  as  to  show  that  they  had  not,  within  the  meaning 
of  the  law,  been  authorized  to  make  a  subscription,  were  matters  with 
which  the  trustees  of  the  township,  in  the  discharge  of  their  ordinary 
duties,  had  no  official  connection,  and  which  the  statute  had  not  com- 
mitted to  their  final  determination.  Granting  that  the  recital  in  the 
bonds  that  they  were  issued  "  in  pursuance  of  the  provisions  of  the 
several  acts  of  the  general  assembly  of  Ohio,"  is  equivalent  to  an 
express  recital  that  the  county  commissioners  had  not  been  authorized 
by  a  vote  of  the  county  to  subscribe  to  the  stock  of  this  company, 
and  that,  consequently,  the  power  conferred  upon  the  township  was 
brought  into  existence,  still  it  is  the  recital  of  a  fact  arising  out  of 
the  duties  of  county  officers,  and  which  the  purchaser  and  all  others 
must  be  presumed  to  know  did  not  belong  to  the  township  to  deter- 
mine, so  as  to  confer  or  create  power  which,  under  the  law,  did  not 
exist.  In  the  view  we  have  taken  of  this  case,  McClure  v.  Township 
of  Oxford,  94  U.  S.  429,  is  instructive.  That  was  a  case  of  munici- 
pal subscription  to  a  railroad  corporation.  The  act  conferring  the 
authority  provided  that  it  should  take  effect  (and,  therefore,  should 
not  be  a  law  except)  from  and  after  its  publication  in  a  particular 
newspaper.  Thirty  days'  notice  of  the  election  was  required.  But 
the  election  was  held  within  thirty  days  from  the  publication  in  the 
paper  named  in  the  act.  The  bonds  recited  that  they  were  issued 
in  pursuance  of  the  statute,  describing  it  by  the  date  of  its  passage, 
not  the  date  of  its  publication  in  the  newspaper  designated.  They 
showed  upon  their  face  that  the  election  was  held  April  8th,  1872. 
But  the  purchaser  was  held  bound  to  know  that  the  act  was  not  in  fact 
published  in  that  newspaper  until  March  2l8t,  1872;  that,  therefore, 
it  did  not  become  a  law  until  from  and  after  that  date.  He  was, 
consequently,  charged  with  knowledge  that  the  election  was  held 
upon  insufficient  notice.  The  bonds  were,  for  these  reasons,  declared 
to  be  not  binding  upon  any  township.  The  publication  of  the  act, 
plainly,  was  not  a  matter  with  which  the  township  trustees,  as  such, 
had  any  official  connection.  It  was  not  made  their  duty  to  have  it 
published.  The  time  of  publication  would  not  necessarily  appear 
upon  the  township  records;  but  publication  in  a  named  newspaper 
was,  as  the  face  of  the  act  showed,  vital,  not  simply  to  the  exercise 
but  to  the  very  existence  of  the  power  to  subscribe.  V/e  may  repeat 
here  what  was  said  in  Anthony  v.  Jasper  County,  101  U.  S.  693,  697, 
that  purchasers  of  municipal  bonds  "  are  charged  with  notice  of  the 
laws  of  the  State,  granting  power  to  make  the  bonds  they  find  on 
the  market.  This  we  have  always  held.  Kthe  power  exists  in  the 
municipality  the  bona  fide  holder  is  protected  against  mere~ifrejgu^ 
rarities  in  the  manner  of  its  execution ;  but  if  there  is  a  want  of 
power  no  legal  liability  can  be  created."  So  here.  Porter  Township 
is  estopped  by  the  recitals  in  the  bonds  from  saying  that  no  township 
election  was  held,  or  that  it  was  not  called  and  conducted  in  the 
Darticular  mode  required  by  law.     But  it  was  not  estopped  to  show 


SUTLIFF   V,   LAKE   COUNTY   COMMISSIONERS.  241 

that  it  was  without  legislative  authority  to  order  the  election  of  August 
30th,  1851,  and  to  issue  the  bonds  in  suit.  The  question  of  legislative 
authority  in  a  municipal  corporation  to  issue  bonds  in  aid  of  a  rail- 
road company  cannot  be  concluded  by  mere  recitals ;  but  the  power 
existing,  the  municipality  may  be  estopped  by  recitals  to  prove 
irregularities  in  the  exercise  of  that  power;  or,  when  the  law  pre- 
scribes conditions  upon  the  exercise  of  the  power  granted,  and  com- 
mits to  the  officers  of  such  municipality  the  determination  of  the 
question  whether  those  conditions  have  been  performed,  the  corpora- 
tion will  also  be  estopped  by  recitals  which  import  such  performance. 

The  judgment  is  affirmed. 


SUTLIFF  V,   LAKE   COUNTY   COMMISSIONERS. 

1893.     147  U.  S.  230.1 

This  was  an  action  brought  in  the  Circuit  Court  of  the  United 
States  for  the  District  of  Colorado  by  a  citizen  of  Connecticut  against 
the  county  of  Lake,  a  municipal  corporation  of  Colorado,  upon 
coupons  for  interest  of  six  bonds  for  $500  each,  part  of  a  series  of 
ten  bonds,  issued  by  the  county  on  July  1,  1881,  payable  to  bearer 
in  twenty  years,  and  redeemable  at  the  pleasure  of  the  county  after 
ten  years,  and  containing  this  recital: 

"  This  bond  is  one  of  a  series  of  five  thousand  dollars,  which  the 
board  of  county  commissioners  of  said  county  have  issued  for  the 
purpose  of  constructing  roads  and  bridges,  by  virtue  of  and  in  com- 
pliance Avith  a  vote  of  a  majority  of  the  qualified  voters  of  said 
county,  at  an  election  duly  held  on  the  7th  day  of  October,  a.  d. 
1879,  and  under  and  by  virtue  of  and  in  compliance  with  an  act  of 
the  general  assembly  of  the  State  of  Colorado,  entitled  '  An  act  con- 
cerning counties,  county  officers  and  county  government,  and  repeal- 
ing laws  on  these  subjects,'  approved  March  24,  a.  d.  1877,  and  it  is 
hereby  certified  that  all  the  provisions  of  said  act  have  been  fully 
complied  with  by  the  proper  officers  in  the  issuing  of  this  bond." 

One  defence  was  that  the  bonds  were  illegal  and  void,  because  they 
increased  the  indebtedness  of  the  county  to  an  amount  in  excess  of 
the  limit  prescribed  by  certain  provisions  of  the  constitution  and 
statutes  of  Colorado,  the  substance  of  which  is  stated  in  the  opinion. 

The  Circuit  Court  gave  judgment  for  the  defendant;  and  the 
plaintiff  took  the  case  by  writ  of  error  to  the  Circuit  Court  of  Appeals 
for  the  Eighth  Circuit,  before  which  the  following  facts  were  made  to 
appear:  At  and  before  the  issue  and  sale  of  said  bonds,  the  county 
was  in  fact  indebted  to  an  amount  greater  than  that  permitted  by 
the  limitation  contained  in  the  constitution  and  statute  of  Colorado, 

1  Statement  abridged.  —  Ed. 
16 


242  SUTLIFF   V.   LAKE   COUNTY   COMMISSIONEKS. 

above  cited;  and  therefore,  as  a  matter  of  fact,  the  issue  of  said 
series  of  bonds,  and  the  issue  of  each  one  thereof  created  an  indebted- 
ness on  the  part  of  the  county  in  excess  of  the  constitutional  and 
statutory  limitation  applicable  to  said  county  at  the  date  of  the  issue 
of  said  bonds.  The  plaintiff  bought  six  of  said  series  of  bonds, 
paying  full  value  therefor,  relying  upon  the  recitals  in  the  bonds  con- 
tained, and  without  making  any  examination  into  the  facts  that 
might  appear  upon  the  records  of  the  county,  and  without  any  actual 
knowledge  of  the  facts  other  than  such  knowledge  with  which  he 
might  be  held  chargeable  from  the  statements  in  the  bonds  and  the 
constitution  and  statutes  of  Colorado. 

Upon  the  case  as  above  stated,  the  Circuit  Court  of  Appeals  certi- 
fied to  this  court  the  following  questions  and  propositions  of  law: 

"1.  In  view  of  the  provisions  of  the  act  of  the  legislature  of  Colo- 
rado, approved  March  24,  1877,  providing  for  the  making  of  a 
public  record  of  the  indebtedness  and  financial  condition  of  the 
several  counties  in  said  State,  was  the  said  .John  Sutliff,  plaintiff 
herein,  when  about  to  purchase  the  bonds  sued  on  and  issued  under 
the  provisions  of  said  act  of  March  24,  1877,  charged  with  the  duty 
of  examining  the  record  of  indebtedness  provided  for  in  said  act,  in 
order  to  ascertain  whether  the  bonds  he  proposed  to  purchase  were 
lawfully  issued  or  whether  the  issuance  thereof  did  not  increase  the 
indebtedness  of  the  county  beyond  the  constitutional  limit? 

•'  2.  Do  the  recitals  found  in  said  bonds  estop  the  county  of  Lake, 
as  against  a  purchaser  thereof  for  value  before  maturity,  from  prov- 
ing as  a  defence  thereto  that  when  said  series  of  bonds  were  issued 
the  indebtedness  of  the  county  already  equalled  or  exceeded  the 
amount  of  indebtedness  which  the  county  could  legally  incur  under 
the  provisions  of  the  constitutional  limitation  already  cited?  " 

Johfi  McClure  for  plaintiff  in  error. 

H.  B.  Johnson  for  defendants  in  error. 

Gray,  J.  The  constitution,  as  well  as  the  statute,  of  Colorado 
absolutely  forbade  a  county  to  issue  bonds,  under  any  circumstances, 
to  such  an  amount  as  would  make  the  aggregate  amount  of  the  in- 
debtedness of  the  county  more  than  six  dollars  on  each  thousand  of 
the  assessed  valuation  if  the  taxable  property  in  the  county  was 
more  than  five  millions  of  dollars,  or  twelve  dollars  if  such  valuation 
was  less  than  five  and  more  than  one  million;  and  limited  the  right 
to  issue  bonds,  without  a  previous  vote  of  the  qualified  electors  of 
the  county,  to  half  of  such  rates. 

The  statute,  moreover,  required  the  county  commissioners,  in  sub- 
mitting the  question  to  a  vote  of  the  electors,  to  enter  of  record  an 
drder  specifying  the  amount  required  and  the  object  of  the  debt;  and 
also  made  it  their  duty  to  publish,  and  to  cause  to  be  entered  on 
their  records,  open  to  the  inspection  of  the  public  at  all  times,  semi- 
annual statements,  exhibiting  in  detail  the  debts,  expenditures  and 
receipts  of  the  county  for  the  preceding  six  months,  and  striking  the 


SUTLIFF   V.   LAKE    COUNTY   COMMISSIONEKS.  243 

balance  so  as  to  show  the  amount  of  any  deficit  and  the  balance  in 
the  treasury. 

It  is  stated  in  the  certificate  upon  which  this  case  comes  before  us 
that  at  the  time  of  the  issue  of  the  bonds  in  question  the  defendant 
county  was  in  fact  indebted  beyond  the  constitutional  and  statutory 
limit,  and  the  issue  of  each  bond  therefore  created  a  debt  in  excess 
of  that  limit;  and  that  the  plaintiff  bought  the  bonds,  upon  the  faith 
of  the  recitals  therein,  and  without  making  any  examination  into  the 
facts  appearing  on  the  records  of  the  county. 

Upon  these  facts,  in  the  light  of  the  previous  decisions  of  this 
court,  it  is  clear  that  the  plaintiff,  although  a  purchaser  for  value  and 
before  maturity  of  the  bonds,  was  charged  with  the  duty  of  examin- 
ing the  record  of  indebtedness  provided  for  in  the  statute  of  Colo- 
rado, in  order  to  ascertain  whether  the  bonds  increased  the  indebted- 
ness of  the  county  beyond  the  constitutional  limit;  and  that  the 
recitals  in  the  bonds  did  not  estop  the  county  to  prove  by  the  records 
of  the  assessment  and  the  indebtedness  that  the  bonds  were  issued  in 
violation  of  the  constitution. 

In  those  cases  in  which  this  court  has  held  a  municipal  corpora- 
tion to  be  estopped  by  recitals  in  its  bonds  to  assert  that  they  were 
issued  in  excess  of  the  limit  imposed  by  the  constitution  or  statutes 
of  the  State,  the  statutes,  as  construed  by  the  court,  left  it  to  the 
oflftcers  issuing  the  bonds  to  determine  whether  the  facts  existed  which 
constituted  the  statutory  or  constitutional  condition  precedent,  and 
did  not  require  those  facts  to  be  made  a  matter  of  public  record. 
Marcij  V.  Osivego,  92  U.  S.  637;  Humboldt  v.  Long,  92  U.  S.  642; 
Dixon  County  \.  Fields  111  U.  S.  83;  Lake  County  \.  Graham,  130  \ 
U.  S.  674,  682;   Chaffee  County  v.  Potter,  142  U.  S.  355,  363. 

But  if  the  statute  expressly  requires  those  facts  to  be  made  a^ 
matter  of  public  record,  open  to  the  inspection  of  every  one,  there  S 
can  be  no  implication  that  it  was  intended  to  leave  that  matter  to  be  / 
determined  and  concluded,  contrary  to  the  facts  so  recorded,  by  the  \ 
officers  charged  with  the  duty  of  issuing  the  bonds.  ' 

Accordingly,  in  Dixon  County  v.  Field,  above  cited,  which  arose 
under  an  article  of  the  constitution  of  Nebraska,  limiting  the  power 
of  a  county  to  issue  bonds  to  ten  per  cent  of  the  assessed  valuation 
of  the  county,  it  was  adjudged  that  a  county  issuing  bonds,  each 
reciting  that  it  was  one  of  a  series  of  $87,000  issued  under  and  by 
virtue  of  this  article  of  the  constitution  and  the  statutes  of  Nebraska 
upon  the  subject,  was  not  estopped  to  show  by  the  assessed  valuation 
on  the  books  of  public  record  of  the  county  that  the  bonds  were  in 
excess  of  the  constitutional  limit;  and  Mr.  Justice  Matthews,  deliv- 
ering the  unanimous  judgment  of  the  court,  fully  stated  the  grounds 
of  the  decision,  which  sufficiently  appear  by  the  following  extracts: 

"  If  the  fact  necessary  to  the  existence  of  the  authority  was  by 
law  to  be  ascertained,  not  officially  by  the  officers  charged  with  the 
execution  of  the  power,  but  by  reference  to  some  express  and  definite 


244  SUTLIFF  V.   LAKE   COUNTY   COMMISSIONERS. 

i-ecord  of  a  public  character,  then  the  true  meaning  of  the  law  would 
be  that  the  authority  to  act  at  all  depended  upon  the  actual  objective 
existence  of  the  requisite  fact,  as  shown  by  the  record,  and  not  upon 
its  ascertainment  and  determination  by  any  one;  and  the  consequence 
would  necessarily  follow,  that  all  persons  claiming  under  the  exercise 
of  such  a  power  might  be  put  to  the  proof  of  the  fact,  made  a 
condition  of  its  lawfulness,  notwithstanding  any  recitals  in  the 
instrument/'     111  U.  S.  93. 

"  In  the  present  case  there  was  no  power  at  all  conferred  to  issue 
bonds  in  excess  of  an  amount  equal  to  ten  per  cent  upon  the  assessed 
valuation  of  the  taxable  property  in  the  county.  In  determining  the 
limit  of  power,  there  were  necessarily  two  factors:  the  amount  of 
the  bonds  to  be  issued,  and  the  amount  of  the  assessed  value  of  the 
property  for  purposes  of  taxation.  The  amount  of  the  bonds  issued 
was  known.  It  is  stated  in  the  recital  itself.  It  was  $87,000.  The 
holder  of  each  bond  was  apprised  of  that  fact.  The  amount  of  the 
assessed  value  of  the  taxable  property  in  the  county  is  not  stated; 
but,  ex  vi  termini,  it  was  ascertainable  in  one  way  only,  and  that 
was  by  reference  to  the  assessment  itself,  a  public  record  equally 
accessible  to  all  intending  purchasers  of  bonds,  as  well  as  to  the 
county  otBcers.  This  being  known,  the  ratio  between  the  two  amounts 
was  fixed  by  an  arithmetical  calculation.  No  recital  involving  the 
amount  of  the  assessed  taxable  valuation  of  the  property  to  be  taxed 
for  the  payment  of  the  bonds  can  take  the  place  of  the  assessment 
itself,  for  it  is  the  amount,  as  fixed  by  reference  to  that  record,  that 
is  made  by  the  constitution  the  standard  for  measuring  the  limit  of 
the  municipal  power.  Nothing  in  the  way  of  inquiry,  ascertainment 
or  determination  as  to  that  fact  is  submitted  to  the  county  officers. 
They  are  bound,  it  is  true,  to  learn  from  the  assessment  what  the 
limit  upon  their  authority  is,  as  a  necessary  preliminary  in  the  exer- 
cise of  their  functions,  and  the  performance  of  their  duty;  but  the 
information  is  for  themselves  alone.  All  the  world  besides  must  have 
it  from  the  same  source,  and  for  themselves.  The  fact,  as  it  is 
recorded  in  the  assessment  itself,  is  extrinsic,  and  proves  itself  by 
inspection,  and  concludes  all  determinations  that  contradict  it." 
Ill  U.  S.  95. 

Tl)at  decision  and  the  gi'ounds  upon  which  it  rests  were  approved 
and  affirmed  in  Lahe  County  v.  Graham  and  Chaffee  County  v. 
Potter^  above  cited,  each  of  which  arose  under  the  article  of  the  con- 
stitution of  Colorado  now  in  question,  but  under  a  different  statute, 
which  did  not  require  the  amount  of  indebtedness  of  the  county  to  be 
stated  on  its  records.  In  La^ke  County  \.  Graham,  each  bond  showed 
on  its  face  the  whole  amount  of  bonds  issued,  and  the  recorded  valu- 
ation of  property  showed  that  amount  to  be  in  excess  of  the  con- 
stitutional limit;  and  for  this  reason,  as  well  as  because  the  bonds 
contained  no  recital  upon  that  point,  the  county  was  held  not  to  be 
estopped   to   plead   that   limit.     130   U.    S.    682,  683.     In    Chaffee 


SUTLIFF   V.   LAKE   COUNTY   COMMISSIONEKS.  245 

County  V.  Potter,  on  the  other  hand,  the  bonds  contained  an  express 
recital  that  the  total  amouut  of  the  issue  did  not  exceed  the  constitu- 
tional limit,  and  did  not  show  on  their  face  the  amount  of  the  issue, 
and  the  county  records  showed  only  the  valuation  of  property,  so 
that,  as  observed  by  Mr.  Justice  Lamar  in  delivering  judgment: 
"  The  purchaser  might  even  know,  indeed  it  may  be  admitted  that  he 
would  be  required  to  know,  the  assessed  valuation  of  the  taxable 
property  of  the  county,  and  yet  he  could  not  ascertain  by  reference  to 
one  of  the  bonds  and  the  assessment  roll  whether  the  county  had 
exceeded  its  power,  under  the  constitution,  in  the  premises."  142 
U.  S.  363. 

The  case  at  bar  does  not  fall  within  Chaffee  County  v.  Potter,  and 
cannot  be  distinguished  in  principle  from  Dixon  County  v.  Field  or 
from  Lake  County  v.  Graham.  The  only  difference  worthy  of  notice 
is  that  in  each  of  these  cases  the  single  fact  required  to  be  shown 
by  the  public  record  was  the  valuation  of  the  property  of  the  county, 
whereas  here  two  facts  are  to  be  so  shown,  the  valuation  of  the  prop- 
erty, and  the  amount  of  the  county  debt.  But,  as  both  these  facts 
are  equally  required  by  the  statute  to  be  entered  on  the  public  records 
of  the  county,  they  are  both  facts  of  which  all  the  world  is  bound  to 
take  notice,  and  as  to  which,  therefore,  the  county  cannot  be  con- 
cluded by  any  recitals  in  the  bonds. 

It  folloivs  that  the  first  question  certified  must  he  answered  in  the 
^,  affirmative,  and  the  second  in  the  negative.     Ordered  accordingly. 


246  CITY   OF  LOUISIANA   V.   WOOD. 


CHAPTEE  VII. 

LIABILITY  TO  ACCOUNT  FOR  PROPERTY  RECEIVED  UPON 
CONTRACTS    NOT  AUTHORIZED  BY  LAW. 


CITY   OF  LOUISIANA   v.    WOOD. 

1880.     102  U.  S.  294.1 

Error  to  U.  S.  Circuit  Court  for  Eastern  District  of  Missouri. 

Action  by  Wood  to  recover  back  from  the  city  money  paid  for  cer- 
tain bonds.  The  city  had  authority  in  law  to  borrow  money,  and  to 
provide  for  the  payment  of  its  debts.  An  ordinance  was  passed, 
authorizing  the  city  fund  commissioner  to  negotiate  bonds  of  the 
city  for  the  purpose  of  raising  money  to  liquidate  the  city  debt,  at  a 
rate  of  discount  not  exceeding  fifteen  per  cent.  Before  any  bonds 
had  been  issued  under  this  ordinance,  the  legislature,  on  March  28, 
1872,  passed  a  statute  which  provides  that  before  any  bond  hereafter 
issued  by  any  city,  for  any  purpose  whatever,  shall  obtain  validity  or 
be  negotiated,  such  bond  shall  first  be  presented  to  the  State  Auditor, 
who  shall  register  the  same,  and  who  shall  certify  by  indorsement  on 
such  bond  that  all  the  conditions  of  the  laws  have  been  complied  with 
in  its  issue,  if  that  be  the  case. 

On  the  16th  of  July,  1872,  after  this  act  went  into  effect,  the 
city,  for  the  purpose  of  raising  money  to  pay  its  interest-bearing 
debts  and  the  expenses  of  its  government,  caused  to  be  executed  by 
its  proper  officers,  and  sealed  with  its  corporate  seal,  twenty-one 
bonds,  payable  to  bearer  on  the  1st  of  January,  1887,  for  $1,000 
each,  with  coupons  attached  for  semi-annual  interest  at  the  rate  of 
ten  per  cent  per  annum.  These  bonds  contained  recitals  that  they 
were  issued  under  the  authority  of  the  charter  and  the  ordinance  of 
Jan.  8,  1867.  Although  not  actually  executed  until  July  16,  1872, 
the  city,  "  for  the  purpose  of  evading  the  provisions  of  said  registra- 
tion law,  and  with  the  intent  to  make  it  falsely  appear  that  said  bonds 
were  not  subject  to  the  requirements  of  said  law,  caused  said  bonds 
to  be  antedated  as  of  the  first  day  of  January,  1872,  and  caused  it  to 
be  falsely  stated  in  them  that  they  were  signed,  countersigned,  and 
sealed  on  the  day  last  named."  The  bonds  thus  executed  were,  with- 
out being  registered,  placed  by  the  fund  commissioner  in  the  hands  of 
a  respectable  stock  and  bond  broker  in  St.  Louis,  to  sell  for  the 
account  of  the  city.     On  the  25th  of  August,  1873,  the  broker  and 

1  Statement  abridged.  —  Ed. 


CITY  OF  LOUISIANA   V.   WOOD.  247 

agent  sold  and  delivered  to  the  plaintiff  below,  now  the  defendant  in 
error,  ten  of  the  bonds  at  ninety  per  cent  of  their  face  value,  and  on 
the  1st  of  September  nine  more  at  the  same  rate.  On  the  24th  of 
June  he  sold  to  Lewis  Dorsheimer  one  bond,  and  on  the  24th  of 
February,  1874,  another  to  John  F.  Gibbons,  at  the  same  price. 
The  price  was  in  each  case  paid  to  the  broker  in  money,  the  purchas- 
ers all  the  time  being  ignorant  of  the  fact  that  the  bonds  were  actually 
executed  after  the  registration  law  went  into  effect,  or  that  the  recitals 
were  not  in  all  respects  true.  They  bought  the  bonds,  and  paid  for 
them  in  good  faith,  believing  them  to  be  what  on  their  face  they  pur- 
ported to  be,  and  obligatory  on  the  city.  The  broker,  with  the  assent 
of  the  fund  commissioner,  retained  from  the  money  realized  on  the 
sales  five  per  cent  on  the  par  value  of  the  bonds  sold,  for  his  services, 
and  paid  the  residue  to  the  commissioner,  who,  with  the  sanction  of 
the  city  council,  used  part  in  the  payment  and  redemption  of  matured 
bonds,  coupons,  and  warrants  of  the  city,  and  handed  over  the  rest 
to  the  city  treasurer.  The  fund  commissioner  reported  the  sales  of 
the  bonds  to  the  city  council,  and  charged  himself  with  a  sum  equal 
to  eighty-five  per  cent  of  the  par  value  as  the  sum  realized  by  him, 
making  no  mention  of  the  amount  retained  by  the  broker  for  services. 
His  accounts  were  examined  and  approved  by  the  city  council,  and 
the  bonds,  coupons,  and  warrants  taken  up  by  his  payments  were 
destroyed.  The  interest  on  the  bonds  thus  sold  was  met  in  full  by 
the  city  as  it  matured  until  Jan.  1,  1876,  when  only  forty  per  cent 
was  paid,  and  on  the  1st  of  July  of  that  year  the  city  declared  its 
purpose  not  to  pay  either  principal  or  interest,  claiming  that  the 
bonds  were  invalid  because  not  registered. 

The  bonds  bought  by  Dorsheimer  and  Gibbons  were  transferred  to 
the  plaintiff.  After  the  city  had  repudiated  its  obligation,  he  offered 
to  return  the  whole  twenty-one  bonds,  and  demanded  the  repayment 
of  the  several  sums  paid  for  them.  This  being  refused,  the  present 
suit  was  brought  to  recover  back  the  money  so  paid.  Upon  the  fore- 
going facts  the  court  gave  judgment  against  the  city  for  Sl8,900,  and 
interest  at  the  rate  of  six  per  cent  per  annum  from  the  time  the  pay- 
ment of  the  interest  on  the  bonds  was  stopped.  To  reverse  that 
judgment,  the  city  brought  the  case  to  this  court,  and  the  error 
assigned  is  that  the  facts  found  are  not  sufficient  to  support  the 
judgment. 

David  P.  Dyer  for  the  plaintiff  in  error. 

John  D.  S.  Dryden^  contra. 

Mr.  Chief  Justice  Waite,  after  stating  the  facts,  delivered  the 
opinion  of  the  court. 

That  the  bonds  in  question  are  invalid,  is  conceded.  Such  is  the 
effect  of  Anthony  v.  County  of  Jasper  (101  U.  S.  693),  decided  at  the 
last  term.  It  is  equally  true  that  the  legal  effect  of  the  transactions 
by  which  the  plaintiff  and  his  assignors  got  possession  of  the  bonds 
was  a  borrowing  by  the  city  of  the  money  paid  for  what  was  sup- 


( 


248  CITY   OF   LOUISIANA   V.   WOOD. 

posed  to  be  a  purchase  of  the  bonds.  As  the  broker  through  whom 
the  business  was  done  was  the  agent  of  the  city  and  acting  as  such, 
the  case,  so  far  as  the  city  is  concerned,  is  the  same  as  though  the 
money  had  been  paid  directly  into  the  city  treasury  and  the  bonds 
given  back  in  exchange.  The  fact  that  the  purchasers  did  not  know 
for  whom  the  broker  was  acting  is,  for  all  the  purposes  of  the  present 
inquiry,  immaterial.  They  believed  they  were  buying  valid  bonds 
which  had  been  negotiated  and  were  on  the  market,  when  in  reality 
they  were  loaning  money  to  the  city,  and  got  no  bonds.  The  city 
was  in  the  market  as  a  borrower,  and  received  the  money  in  that 
I  character,  notwithstanding  the  transaction  assumed  the  form  of  a  sale 
\of  its  securities. 

The  city,  by  putting  the  bonds  out  with  a  false  date,  represented 
that  they  were  valid  without  registry.  The  bonds  were  bought  and 
the  price  was  paid  under  the  belief,  brought  about  by  the  conduct  of 
the  city,  that  they  had  been  put  out  and  had  become  valid  commer- 
cial securities  before  the  registry  law  went  into  effect.  It  would 
certainly  be  wrong  to  permit  the  city  to  repudiate  the  bonds  and  keep 
the  money  borrowed  on  their  credit.  The  city  could  lawfully  borrow. 
The  objection  goes  only  to  the  way  it  was  done.  As  the  purchasers 
were  kept  in  ignorance  of  the  facts  which  made  the  bonds  invalid, 
they  did  not  knowingly  make  themselves  parties  to  any  illegal  trans- 
action. They  bought  the  bonds  in  open  market,  where  they  had 
been  put  by  the  city  in  the  possession  of  one  clothed  with  apparent 
authority  to  sell.  The  only  party  that  has  done  any  wrong  is  the 
city. 

In  Moses  v.  MacFerlan  (2  Burr.  1005),  it  is  stated  as  a  rule  of  the 
common  law,  that  an  action  "  lies  for  money  paid  by  mistake,  or 
upon  a  consideration  which  happens  to  fail,  or  for  money  got  through 
imposition."  The  present  action  can  be  sustained  on  either  of  these 
grounds.  The  money  was  paid  for  bonds  apparently  well  executed, 
when  in  fact  they  were  not,  because  of  the  false  date  they  bore.  This 
was  clearly  money  paid  by  mistake.  The  consideration  on  which  the 
payment  was  made  has  failed,  because  the  bonds  were  not,  in  fact, 
valid  obligations  of  the  city.  And  the  money  was  got  through  impo- 
sition, because  the  city,  with  intent  to  deceive,  pretended  that  the 
false  date  the  bonds  bore  was  the  true  one.  While,  therefore,  the 
bonds  cannot  l)e  enforced,  because  defectively  executed,  the  money 
paid  for  them  may  be  recovered  back.  As  we  took  occasion  to  say 
in  Marsh  v.  Fulton  County  (10  Wall.  676),  "  the  obligation  to  do 
justice  rests  upon  all  persons,  natural  or  artificial,  and  if  a  county 
obtains  the  money  or  property  of  others  without  authority,  the  law, 
independent  of  any  statute,  will  compel  restitution  or  compensation." 

It  is  argued,  however,  that,  as  the  city  was  only  authorized  by 
law  to  borrow  money  at  a  rate  of  interest  not  exceeding  ten  per  cent 
per  annum,  the  money  cannot  be  recovered  back,  because  a  sale  of 
the  bonds  involved  an  obligation  to  pay  interest  beyond  the  limited 


EAILROAD   NATIONAL   BANK    V.   CITY   OF   LOWELL  249 

rate,  and  the  borrowing  was,  therefore,  ultra  vires.  There  was  no 
actual  sale  of  bonds,  because  there  were  no  valid  bonds  to  sell. 
There  was  no  express  contract  of  borrowing  and  lending,  and  conse-  j 
quently  no  express  contract  to  pay  any  rate  of  interest  at  all.  The  ^ ' 
only  contract  actually  entered  into  is  the  one  the  law  implies  from  \ 
what  was  done,  to  wit,  that  the  city  would,  on  demand,  return  the  ( 
money  paid  to  it  by  mistake,  and,  as  the  money  was  got  under  a  form  / 
of  obligation  which  was  apparently  good,  that  interest  should  be  paid  \ 
at  the  legal  rate  from  the  time  the  obligation  was  denied.  That  con-  / 
tract  the  plaintiffs  seek  to  enforce  in  this  action,  and  no  other. 

Again,  it  was  contended  that,  as  the  money  in  this  case  was  bor- 
rowed to  take  up  bonded  indebtedness,  the  transaction  was  ultra  vires, 
because  the  effect  of  the  eleventh  section  of  the  act  of  1872  was  to 
repeal  all  earlier  laws  authorizing  the  borrowing  of  money  for  such 
purposes.  We  do  not  so  understand  that  section.  The  old  power  to 
borrow,  which  the  charter  gave,  was  left  unimpaired,  but,  under  this 
new  provision,  registered  bonds  might  be  issued  in  place  of  old  ones, 
if  the  city  and  the  holders  of  the  old  bonds  could  agree  on  terms  and 
the  people  gave  their  assent.  In  this  way  the  holders  of  old  bonds 
might  avail  themselves  of  the  special  tax  which  the  law  of  1872  re- 
quired should  be  levied  to  meet  the  obligation  of  all  registered  bonds; 
but  the  city  was  not  prevented  from  borrowing  money  to  pay  old 
bonds  if  it  saw  fit  to  do  so,  or  if  it  could  not  agree  on  the  terms  of 
exchange. 

The  judgment  below  was  right,  and  it  is  consequently 

Affirmed. 


RAILROAD  NATIONAL  BANK  v.    CITY   OF   LOWELL. 

1872.     109  Mass.  214. 

Contract  to  recover  $3397  as  money  had  and  received  to  the 
plaintiffs'  use.  The  case  was  submitted  to  the  judgment  of  this  court 
on  the  following  statement  of  facts: 

In  1864  Thomas  G.  Gerrish  was  chosen  treasurer  of  the  defendants, 
held  the  office  by  successive  annual  elections,  and  discharged  the 
duties  thereof  until  after  March  10,  1869.  During  all  this  time  he, 
as  treasurer,  had  an  account  with  the  plaintiffs  and  with  no  other 
bank,  under  an  arrangement  between  the  parties  that  the  accounts  of 
the  defendants  should  be  kept  there.  In  each  of  the  years  1865,  1866, 
1867  .and  1868,  the  city  council  authorized  him  to  borrow  money  of 
the  plaintiffs  in  anticipation  of  the  collection  of  taxes,  and  the  sums 
so  borrowed  were  always  repaid  with  interest.  In  March  1869, 
Gerrish  was  a  defaulter  to  the  defendants  as  treasurer,  to  the  amount 
of  $30,000,  but  the  fact  was  unknown  to  the  parties  to  this  action, 
and  on  the  evening  of  March  9  a  resolution,  authorizing  him  to  bor 


250  RAILROAD   NATIONAL   BANK   V.   CITY   OF   LOWELL. 

row  $130,000  from  the  plaintiffs,  in  anticipation  of  the  collection  of 
taxes  for  that  year,  was  introduced  into  the  common  council,  read 
once,   and  ordered  to  a  second  reading. 

On  the  morning  of  March  10,  1869,  at  which  time  the  amount 
standing  to  the  credit  of  Gerrish  as  treasurer,  in  the  plaintiffs' 
hands,  was  $2674,  he  stated  to  the  plaintiffs'  cashier  that  the  neces- 
sary authority  to  borrow  money  had  been  granted  the  evening  before, 
that  the  papers  were  not  executed,  and  that  he  wished  to  overdraw 
his  account.  He  therefore,  without  the  knowledge  of  the  defendants, 
or  any  especial  authority  from  them,  presented  to  the  plaintiffs  a 
check  signed  by  himself  as  city  treasurer,  payable  to  his  own  order, 
and  indorsed  by  him,  for  $5000,  received  the  money  therefor  from 
the  plaintiffs,  placed  the  same  in  the  cash-drawer  where  he  kept  the 
defendants'  money,  with  "  a  small  sum,  exceeding  $100,"  remaining 
there  after  the  business  of  the  preceding  day ;  and  from  the  money 
there  he  paid  during  the  same  day,  to  various  creditors  of  the  de- 
fendants, upwards  of  $4900.  The  rest  of  it  was  left  there,  and  came 
into  the  possession  of  the  defendants.  He  afterwards  on  the  same 
day  drew  another  check  upon  the  plaintiffs,  signed  by  himself  as  city 
treasurer,  payable  to  bearer,  for  $1072,  to  pay  a  debt  due  from  the 
defendants  to  a  gaslight  company,  which  check  was  presented  to  the 
plaintiffs  by  the  company  and  paid  on  the  same  day. 

On  March  11,  1869,  Gerrish  resigned  his  office.  He  never  kept  a 
private  account  with  the  plaintiffs.  Demand  was  made  on  the  de- 
fendants on  March  12,  1869. 

C.  Allen  &  F.  W.  Kittredge,  for  the  plaintiffs. 

T.  H.  Sweetser  &  J.  F.  IIcEvoij,  for  the  defendants. 

Wells,  J.  That  the  city  is  not  liable  for  the  money  as  a  loan, 
because  it  was  advanced  to  its  treasurer  or  paid  upon  his  checks,  is 
fully  settled  by  the  decisions  in  Loniell  Five  Cents  Savings  Bank  v. 
Winchester^  8  Allen,  109;  Denoit  v.  Comvay^  10  Allen,  528;  and 
Dickinson  v.  Conway^  12  Allen,  487. 

It  was  also  decided  in  Kelley  v.  Lindsey,  7  Gray,  287,  that  money 
advanced  on  account  of  the  defendant  to  one  in  his  employ,  but  who 
had  no  authority  to  borrow  money  for  him,  created  no  debt  against 
the  defendant,  although  advanced  for  the  purpose  of  being  expended 
in  his  business  and  to  pay  his  debts,  and  actually  so  applied.  That  de- 
cision appears  to  us  to  be  conclusive  against  the  plaintiff  in  this  case. 

In  Dill  V.  Wareham,  7  Met.  438,  cited  by  the  plaintiff,  the  money 
was  paid  into  the  treasury  of  the  town  in  pursuance  of  a  contract 
made  by  authority  of  a  vote  of  the  town. 

In  Atlantic  Bank  v.  Merchants'  Bank,  10  Gray,  532,  and  Skinner 
v.  Merchants'  Bank,  4  Allen,  290,  the  money  came  into  the  actual 
possession  and  control  of  the  defendant  bank.  The  legal  possession 
of  money  received  by  the  officers  of  a  bank,  in  the  usual  mode,  is  in 
the  corporation,  and  not  in  the  officers  in  whose  charge  and  manual 
control  it  is  intrusted.      Commonwealth  v.  Tuckerman,  10  Gray,  173. 


AGAWAM    NAT.    BANK   V.   INHABITANTS   OF   SOUTH    HADLEY.      251 

The  treasurer  of  a  city  or  town  is  an  independent  accounting 
officer,  by  statute  made  the  depositary  of  the  moneys  of  the  city  or 
town.  Gen.  Sts.  c.  18,  §§  54,  59;  c.  19,  §  2.  The  legal  possession 
of  the  specific  moneys  in  his  hands,  from  whatever  source,  is  in  him. 
Hancock  v.  Hazzard^  12  Cush.  112.  Coleraine  v.  Bell^  9  Met.  499. 
AH  moneys  of  the  city  or  town  he  holds  as  its  property,  and  exclu- 
sively for  its  use.  But  he  holds  them  by  virtue  of  his  public  official 
authority  and  duty,  and  not  merely  as  the  agent  or  servant  of  a 
corporation. 

The  fact  that  the  money  in  this  case  went  into  the  hands  of  the 
treasurer,  and  was   placed    in  the  drawer  provided  by  the  city  forj 
his  use  in  keeping  the  funds  of  the  city,  is  not  enough  to  charge  the 
defendant  with  liability. 

The  result  is,  therefore,  that  the  defendant  is  entitled  to  judgment. 


COLT,    J.,    IN    AGAWAM    NATIONAL    BANK    v.    INHABI- 
TANTS  OF   SOUTH   HADLEY. 

1880.     128  Mass.  503,  pp.  508,  509. 

Colt,  J.  ...  It  is  said  that  an  action  for  money  had  and  received 
may  be  maintained  against  a  municipal  corporation,  when  the  money 
has  been  received  under  such  circumstances  that,  independently  of 
express  contract,  the  obligation  of  repayment  is  imposed  as  a  matter 
of  right  and  justice.  Thus,  when  it  is  received  under  a  contract 
made  without  authority  or  in  violation  of  law,  the  duty  arises  to 
refund  the  money  to  the  party  from  whom  it  was  received,  if,  without 
affirming  the  illegal  contract,  the  latter  seeks  only  to  recover  his 
own  money  and  prevent  the  defendant  from  unjustly  retaining  the 
benefit  of  its  own  illegal  act.  Morville  v.  Avierican  Tract  Society^ 
123  Mass.  129.  Dill  v.  Wareham,  7  Met.  438.  White  v.  Franklin 
Bank^  22  Pick.  181.  See  also  Thomas  v.  Richmond,  12  Wall.  349, 
355.  But  in  such  cases  it  must  appear  that  the  money  was  actually\  Iv 
and  beneficially  appropriated  by  the  town  or  city  in  its  corporate '  ' 
capacity.  It  cannot  be  treated  as  appropriated  merely  because  it  has 
been  applied  by  the  unauthorized  act  of  the  town  treasurer,  or  of  any 
other  person,  to  the  payment  of  municipal  debts,  for  the  payment  of 
which  other  provision  had  been  made.  It  is  sometimes  said,  indeed, 
with  reference  to  money  borrowed  in  disregard  of  positive  prohibi- 
tion, when  both  parties  are  in  fault,  that  it  cannot  under  any  circum- 
stances be  recovered  back,  because  that  would  be  to  defeat  the 
prohibition  in  favor  of  a  guilty  party.  McDonald  v.  Mayor,  &c.  of 
New  York,  68  N.  Y.  23.  Parr  v.  Greenhush,  72  N.  Y.  463,  472. 
Herzo  v.  San  Francisco,  33  Cal.  134.  Argenti  v.  San  Francisco, 
16  Cal.  255,  282.     See  also  Dillon  Mun.  Corp.  §  383. 


252  MCDONALD   V.  MAYOR,   &C.,   OF   NEW   YORK. 

FIELD,    J.,    IN   CRAFT   v.    SOUTH  BOSTON   R.    R, 

1889.     150  Mass.  207,  p.  210. 

Field,  J.  .  .  .  Whether  a  person  under  any  circumstances  can  be 
made  a  debtor  for  money  borrowed  by  another  for  him,  without 
authority,  and  appropriated  to  his  use  without  his  knowledge  or  con- 
sent, need  not  be  considered.  See  Kelley  v.  Lindsey,  7  Gray,  287. 
No  obligation  on  the  part  of  the  defendant  ought  to  be  implied  in 
this  case,  because  Reed  was  a  defaulter,  and  the  money  was  used  to 
cover  up  his  defalcation  by  paying  debts  of  the  company,  which  the 
money  of  the  company,  if  he  had  not  embezzled  it,  would  have  been 
used  to  pay.  The  only  reasonable  inference  is  that  Reed's  primary 
purpose  in  using  the  money  in  this  way  was  to  escape  detection  and 
to  benefit  himself.  Whether  it  was  a  benefit  to  the  company^hM  he 
was  able  to  obtain  and  use  money  for  this  purpose  is  necessarily 
uncertain.  The  money  was  not  borrowed  bona  fide  for  the  use  of  the 
company.  See  Railroad  National  Bank  v.  Lowell^  109  Mass.  214j 
Agawam  National  Bank  v.  South  Hadley^  128  Mass.  503.V 


Mcdonald  v.  mayor,  &c.,  of  new  york.    r\ 

1876.     68  New  York,  23.1 

Appeal  from  order  of  the  General  Term  of  the  Supreme  Court  in 
the  first  judicial  department  reversing  a  judgment  in  favor  of  plaintiff 
entered  upon  a  verdict,  and  granting  a  new  trial. 

This  action  was  brought  to  recover  the  value  of  certain  gravel  and 
stone  alleged  to  have  been  sold  and  delivered  by  plaintiff  to  defendant 
and  used  in  the  repair  of  one  of  its  streets. 

The  material  was,  as  the  evidence  tended  to  show,  furnished  by 
plaintiff  in  1869  and  1870,  at  the  request  of  the  superintendent  of 
roads,  to  whom  the  bills  were  given  and  were  certified  by  him  to  the 
street  department.  The  material  was  taken  and  used  on  the  streets. 
Further  facts  appear  in  the  opinion. 

Henry  Parsons^  for  appellant. 

D.  J.  Dean,,  for  respondent. 

FoLGER,  J.  The  plaintiff  sues  to  recover  from  the  city  the  value  of 
materials  furnished  by  him  to  certain  officials,  which  were  used  in  the 
repair  of  a  public  way.  The  amount  he  claims  is  over  $1,600  in  the 
whole.  The  materials  were  furnished  at  different  times,  in  parcels, 
each  of  which,  except  one,  was  less  in  value  than  $250. 

He  does  not  aver,  nor  did  he  prove  in  terms,  that  a  necessity  iot 

1  Arguments  omitted.  —  Ed. 


MCDONALD    V.    MAYOR,   AC,   OF   NEW   YORK.  253 

the  purchase  or  use  of  the  materials  was  certified  to  by  the  head  of 
the  department  of  public  works,  or  that  the  expenditure  therefor  was 
authorized  by  the  common  council  (Laws  of  1857,  vol.  1,  p.  886,  chap. 
446,  §  38) ;  nor  did  he  aver  or  prove  in  terms,  that  a  contract  for 
the  purchase  of  the  materials  was  entered  into  by  the  appropriate 
head  of  department,  upon  sealed  bids  or  proposals,  made  in  compli- 
ance with  public  notice  advertised.     (Id.)^ 

The  existence  and  stringency  of  these  statutory  provisions  are 
recognized  by  plaintiff's  counsel,  but  the  force  of  them  is  sought  to 
be  avoided.  It  is  urged,  that  the  object  of  the  expenditure  was 
proper,  as  it  is  paxTof  the  defendant's  corporate  duty  to  keep  public 
ways  in  repair;  that  the  material  was  delivered  to  the  superintendent 
of  roads,  an  official  of  the  defendant,  charged  with  carrying  that  duty 
into  practical  effect;  and  that  the  plaintiff  had  reason  to  believe  that 
the  superintendent  was  acting  within  the  line  of  his  duties.  The  first 
two  of  these  propositions  may  be  admitted ;  the  third  may  not  be. 
Doubtless,  to  the  apprehension  of  the  plaintiff,  the  superintendent 
was  so  acting,  as  to  do  work  which  it  was  the  duty  of  the  defendant 
to  cause  to  be  done.  But  we  see  nothing  in  the  case  which  brought 
to  his  mind,  so  as  to  create  a  belief,  that  there  had  been  a  contract 
made  for  the  material,  as  above  indicated,  or  that  the  necessity  for 
the  expenditure  had  been  certified  to  and  authorized,  as  required  by 
law.  And  though  the  superintendent  of  roads  had  certified  to  be 
correct,  the  bills  for  the  materials,  rendered  by  the  plaintiff,  this  did 
not  meet  the  letter  of  the  statute  laws.  Such  certification  did  not 
precede  the  reception  of  the  material ;  nor  was  the  certification  by  the 
head  of  the  department;  nor  was  the  taking  and  use  of  the  material, 
nor  payment  for  it,  authorized  by  the  common  council.  Nor  can  it 
be  that  the  provisions  of  the  statute,  are  alone  for  the  instruction  of 
the  department  and  oflBcials  of  the  defendant.  They  were  a  restraint 
upon  them,  but  upon  other  persons  as  well.  They  put  upon  all  who 
would  deal  with  the  city,  the  need  of  first  looking  for  the  authority 

1  "  All  contracts  to  be  made  or  let  bv  authority  of  the  common  council  for  work  to 
be  done  or  supplies  to  be  furnished  .  .  .  shall  be  made  by  the  appropriate  heads  of 
departments,  under  such  regulations  as  shall  be  established  by  ordinances  of  the  com- 
mon council.  Whenever  any  work  is  necessary  to  be  done  to  complete  or  perfect  a 
particular  job,  or  any  supply  is  needful  for  any  particular  purpose,  which  work  and 
job  is  to  ])e  undertaken  or  supply  furnished  for  the  corporation,  and  the  several  parts 
of  the  said  work  or  supply  shall  together  involve  the  expenditure  of  more  than  two 
hundred  and  fifty  dollars,  the  same  shall  be  by  contract,  under  such  regulations  con- 
cerning it  as  shall  be  established  by  ordinance  of  the  common  couricil,  unless  by  a 
Tote  of  three-fourths  of  the  members  elected  to  each  board,  it  shall  be  ordered  other- 
wise ;  and  all  contracts  shall  be  entered  into  by  the  appropriate  heads  of  departments, 
and  shall  be  founded  on  sealed  bids  or  proposals  made  in  compliance  with  public 
notice  .  .  . ;  and  all  such  contracts  when  given  shall  be  given  to  the  lowest  bidder.  .  .  . 
.  .  No  expenditure  for  work  or  supplies  involving  an  amount  for  which  no  contract 
is  required,  shall  be  made,  except  the  necessity  therefor  be  certified  to  by  the  head  of 
the  appropriate  department,  and  the  expenditure  be  as  authorized  by  the  common 
touncil."     New  York  Laws  of  1 857,  Chap.  446,  Sect.  38.  —  Ed. 


i 


254  MCDONALD   V.   MAYOR,    &C.,    OF   NEW   YORK. 

of  the  agent  with  whom  they  bargain.  Quite  clearly  do  they  impose 
upon  the  paying  agent  of  the  defendant  a  prohibition  against  an  un- 
authorized expenditure.  And  are  they  not  also  a  restraint  upon  the 
municipality  itself?  They  are  fitted  to  insure  official  care  and  delib- 
eration, and  to  hold  the  agents  of  the  public  to  personal  responsi- 
bility for  expenditure;  and  they  are  a  limit  upon  the  powers  of  the 
corporation,  inasmuch  as  they  prescribe  an  exact  mode  for  the  exer- 
cise of  the  power  of  expenditure. 

It  is  said  that  the  plaintiff  had  a  right  to  presume,  that  the  agents 
of  the  defendant  transacted  their  business  properly,  and  under  suffi- 
cient authority.  Does  not  this  involve,  also,  that  the  plaintiff  had  a 
right  to  presume,  that  it  was  the  business  of  the  superintendent  of 
roads  to  purchase  material  for  the  city  upon  the  credit  of  the  city, 
and  that  he  had  authority  so  to  do?  This  cannot  be  maintained. 
lit  is  fundamental,  that  those  seeking  to  deal  with  a  municipal  cor- 
jporation  through  its  officials,  must  take  great  care  to  learn  the  nature 
and  extent  of  their  power  and  authority.  {Hodges  v.  Bvffalo,  2 
Denio,  110;  cited  33  N.  Y.,  293;  Cornell  v.  Guilford,  1  Den.,  510; 
Savmffs  Bank  v.  Winchester,  8  Allen,  109.)  The  plaintiff  cites 
United  States  Bank  v.  Dandridge  (12  Wheat.,  70).  But  there  it  is 
said  that  if  the  charter  imposes  restrictions  they  must  be  obeyed. 
Could  the  plaintiff  presume  that  it  was  the  duty  of  the  defendant  to 
keep  the  Kingsbridge  road  in  repair?  No;  he  must  look  to  its  char- 
ter to  learn  of  that  duty.  The  same  instrument  would  show  him  just 
how  it  must  obtain  the  material  to  perform  that  duty.  The  Gas 
Company  y.  San  Francisco  (9  Cal.,  4.53)  is  also  cited.  The  real  ques- 
tion there  decided  was,  that  a  city  can  be  held  to  have  incurred  a 
liability  otherwise  than  by  ordinance.  There  was  no  stress  in  that 
case  upon  any  inhibitions  in  the  charter  of  the  city.  The  result  was 
arrived  at  by  a  divided  court. 

But  the  main  reliance  of  the  plaintiff,  is  upon  the  proposition  that 
the  defendant,  having  appropriated  the  materials  of  the  plaintiff  and 
used  them,  is  bound  to  deal  justly  and  to  pay  him  the  value  of  them. 
The  case  of  Nelson  v.  The  Mayor  (63  N.  Y.,  535)  is  cited.  The 
learned  judge  who  delivered  the  opinion  in  that  case  does,  indeed, 
use  language  which  approaches  the  plaintiff's  proposition;  but  the 
judgment  in  that  case  did  not  go  upon  the  doctrine  there  put  forth; 
and  when  the  opinion  is  scrutinized  it  does  not  quite  cover  this  case. 
It  is  said:  "  If  it  (the  city),  obtains  property  under  a  void  contract, 
and  actually  uses  the  property,  and  collects  the  value  of  it  from 
property  owners  by  means  of  assessments,  the  plainest  principles  of 
justice  require  that  it  should  make  compensation,  for  the  value  of 
such  property,  to  the  person  from  whom  it  was  obtained."  The 
words  we  have  marked  in  italics  indicate  a  difference  between  the 
two  propositions;  though  it  is  to  be  admitted,  not  a  great  difference 
in  the  principles  upon  which  each  rests.  The  case  in  the  California 
courts  (Argenti  v.  San  Francisco,  16  Cal.,  255),  goes  upon  the  ground 


MCDONALD    V.    MAYOR,   &C.,    OF   NEW   YORK.  255 

Bet  forth  in  the  opinion  in  Nehoti's  Case,  (si/pra).  There  is,  how 
ever,  a  more  radical  difference,  than  that  above  noted,  in  the  two 
cases  cited  and  that  in  hand.  In  those  two  cases  the  way  was  open 
for  implying  a  promise  to  pay  what  the  property  was  worth,  if  with  no 
disregard  of  statute  law,  such  an  implication  was  admissible;  that  is 
to  say,  there  was  in  those  cases,  so  far  as  appears  from  the  facts, 
no  express  inhibition  upon  the  city  that  it  should  not  incur  a  liability 
save  by  an  express  contract.  Here  there  is  an  express  legislative 
inhibition  upon  the  city,  that  it  may  not  incur  liability  unless  by 
writing  and  by  record.  How  can  it  be  said  that  a  municipality  is 
liable  upon  an  implied  promise,  when  the  very  statute  which  continues 
its  corporate  life,  and  gives  it  its  powers,  and  prescribes  the  mode 
of  the  exercise  of  them,  says,  that  it  shall  not,  and  hence  cannot, 
become  liable,  save  by  express  promise?  Can  a  promise  be  implied, 
which  the  statute  of  frauds  says  must  be  in  writing  to  ba  valid?  How 
do  the  cases  differ?  The  Bank  of  the  United  States  v.  Dandridge 
(supra),  which  is  a  leading  case  upon  the  doctrine  of  the  liability  of 
a  corporation  aggregate,  upon  a  promise  implied,  holds,  as  we  have 
already  said,  that  if  the  charter  imposes  restrictions  upon  the  manner 
of  contracting,  they  must  be  observed.  And  the  California  cases 
above  cited,  concede  the  same.  It  is  plain,  that  if  the  restrictioi 
put  upon  municipalities  by  the  legislature,  for  the  purposes  of  re-S  |  A,^< 
ducing  and  limiting  the  incurring  of  debt  and  the  expenditure  of  the 
public  money,  may  be  removed,  upon  the  doctrine  now  contended  for, 
there  is  no  legislative  remedy  for  the  evils  of  municipal  government, 
which  of  late  have  excited  so  much  attention  and  painful  foreboding. 
Restrictions  and  inhibition  by  statute  are  practically  of  no  avail,  if 
they  can  be  brought  to  naught  by  the  unauthorized  action  of  every , 
official  of  lowest  degree,  acquiesced  in,  or  not  repudiated,  by  his 
superiors.  Donovan  v.  The  Mayor,  etc.  (33  N.  Y.,  291),  seems  to  be 
an  authority  in  point,  though  the  exact  question  now  presented  was 
not  considered.  And  incidental  remarks  of  Denio,  J.,  in  Peterson  v. 
The  Mayor  (17  N.  Y.,  449),  are  to  the  same  purport.  And  see  Peck 
V.  Burr  (10  N.  Y.,  294).  The  views  here  set  forth,  are  not  to  be 
extended  beyond  the  facts  of  the  case.  It  may  be,  that  where  a  munic- 
ipality has  come  into  the  possession  of  the  money  or  the  property  of 
a  person,  without  his  voluntary  intentional  action  concurring  therein, 
the  law  will  fix  a  liability  and  imply  a  promise  to  repay  or  return  it. 
Thus,  money  paid  by  mistake,  money  collected  for  an  illegal  tax  or 
assessment;  property  taken  and  used  by  an  official,  as  that  of  the 
city,  when  not  so;  —  in  such  cases,  it  may  be  that  the  statute  will  not 
act  as  an  inhibition.  The  statute  may  not  be  carried  further  than  its 
intention,  cei'tainly  not  further  than  its  letter.  Its  purpose  is  to 
forbid  and  prevent  the  making  of  contracts  by  unauthorized  official 
agents,  for  supplies  for  the  use  of  the  corporation.  This  opinion 
goes  no  further  than  to  hold,  tliat  wliere  a  person  makes  a  contract 
with  the  city  of  New  York  for  supplies  to  jt^^^ithout  the  requirements 


256  LITCHFIELD   V.   BALLOU. 

of  the  charter  being  observed,  he  may  not  recover  the  value  thereof 
upon  an  implied  liability. 

The  judgment  should  be  affirmed. 

All  concur.  Judgment  affirmed.^ 


LITCHFIELD    r.    BALLOU. 

1885.     114  U.  S.  190. 

This  was  a  bill  in  chancery  to  enforce  payment  of  monej's  loaned 
to  a  municipality  in  violation  of  law,  and  for  which  it  had  been  held 
that  an  action  could  not  be  maintained  at  law.  Buchanan  v. 
Litchfield^  102  U.  S.  278.  The  facts  making  the  case  are  stated  in 
the  opinion  of  the  court. 

John  M.  Palmer  and  B.  S.  Edwards  for  appellant. 

D.  T.  Littler  for  appellees. 

Mr.  Justice  Miller  delivered  the  opinion  of  the  court. 

This  is  an  appeal  from  a  decree  in  chancery  of  the  Circuit  Court 
tor  the  Southern  District  of  Illinois. 

The  suit  was  commenced  by  a  bill  brought  by  Ballou  against  the 
city  of  Litchfield.  Complainant  alleges  that  he  is  the  owner  of  bonds 
issued  by  the  city  of  Litchfield  to  a  very  considerable  amount.  That 
the  money  received  by  the  city  for  the  sale  to  him  of  these  bonds  was 
used  in  the  construction  of  a  system  of  water  works  for  the  city,  of 
which  the  city  is  now  the  owner.  He  alleges  that  one  Buchanan,  who 
5vas  the  owner  of  some  of  these  bonds,  brought  suit  on  them  in  the 
5ame  court  and  was  defeated  in  his  action  in  the  Circuit  Court  and  in 
the  Supreme  Court  of  the  United  States,  both  of  which  courts  held 
the  bonds  void. 

He  now  alleges  that,  though  the  bonds  are  void,  the  city  is  liable  to 
him  for  the  money  it  received  of  him,  and  as  by  the  use  of  that 
money  the  water  works  were  constructed,  he  prays  for  a  decree 
against  the  city  for  the  amount,  and  if  it  is  not  paid  within  a  reason- 
able time  to  be  fixed  by  the  court,  that  the  water  works  of  the  city  be 

^  "To  permit  a  recovery  upon  a  quantum  meruit  solely  for  a  work  which  can  be 
done  only  by  authority  of  a  statute,  would  necessarily  lead  to  the  conclusion  that  a 
statute  might  be  wholly  ignored,  and  the  county  bound,  provided  it  received  the 
worth  of  its  money. 

"...  The  distinction  must  be  kept  in  view  between  those  cases  which  hold  that  a 
municipal  corporation,  which  has  received  the  benefit  of  money,  labor,  or  property 
upon  a  contract  made  without  due  formality,  and  which  is  not  prohibited  by  statute, 
is  liable  to  the  extent  of  the  value  of  what  has  been  received  and  appropriated,  and 
tiiose  cases  where  the  municipality  has  power  to  act  only  by  virtue  of  a  statute,  and, 
in  attempting  to  exercise  the  power,  has  failed  to  observe  the  statutory  requirements. 
In  the  one  class  of  cases  the  power  to  contract  exists,  while  in  the  other  the  power  to 
contract  does  not  exist,  because  of  the  failure  of  the  municipality  to  that  which  alone 
could  give  it  such  power."  Robinson,  C.  J.,  in  Wronght-Iron  Bridge  Co.  v.  Board  of 
C'om'rs  of  Hendricks  County,  Appellate  Court  of  Indiana,  a.  d.  1898,  48  Northeastern 
Hcportcr,  1050,  p.  1052. —  Ed. 


LITCHFIELD   V.   BALLOU,  257 

Bold  to  satisfy  the  decree.  The  bill  also  charges  that  he  was  misleoi 
to  purchase  the  bonds  by  the  false  statements  of  the  otlicers,  agents 
and  attorneys  of  the  city,  that  the  bonds  were  valid.  Other  parties 
came  into  the  litigation,  and  answers  were  filed.  The  answer  of  the 
city  denies  any  false  i-epresentations  as  to  the  character  of  the  bonds, 
denies  that  all  the  money  received  for  them  went  into  the  water 
works,  but  part  of  it  was  used  for  other  purposes,  and  avers  that  a 
larger  part  of  the  sum  paid  for  the  water  works  came  from  other 
sources  than  the  sale  of  these  bonds,  and  it  cannot  now  be  ascertained 
how  much  of  that  money  went  into  the  works. 

The  case  came  to  issue  and  some  testimony  was  taken,  the  sub- 
stance of  which  is  that  much  the  larger  part  of  the  money  for  which 
the  bonds  were  sold  was  used  to  pay  the  contractors  who  built  the 
water  works,  while  a  very  considerable  proportion  of  the  cost  of  these 
works  was  paid  for  out  of  taxation  and  other  resources  than  the 
bonds. 

There  is  no  evidence  of  any  false  or  fraudulent  representations  by 
the  authorized  agents  of  the  city. 

The  bonds  were  held  void  in  the  case  of  Buchanan  v.  Litchfield, 
102  U.  S.  278,  because  they  were  issued  in  violation  of  the  following 
provision  of  the  Constitution  of  Illinois  : 

"Article  IX. 

"  Section  12.  No  county,  city,  township,  school  district,  or  other 
municipal  corporation,  shall  be  allowed  to  become  indebted  in  any 
manner,  or  for  any  purpose,  to  an  amount,  including  existing  indebted- 
ness, in  the  aggregate  exceeding  five  per  centum  on  the  value  of 
the  taxable  property  therein,  to  be  ascertained  by  the  last  assessment 
for  State  and  county  taxes,  previous  to  the  incurring  of  such 
indebtedness." 

It  was  made  to  appear  as  a  fact  in  that  case,  that  at  the  time  the 
bonds  were  issued  the  city  had  a  pre-existing  indebtedness  exceeding 
five  per  cent,  of  the  value  of  its  taxable  property,  as  ascertained  by  its 
last  assessment  for  State  and  county  taxes. 

The  bill  in  this  case  is  based  upon  the  fact  that  the  bonds  are  for 
that  reason  void,  and  it  makes  the  record  of  the  proceedings  in  that 
suit  an  exhibit  in  this.  But  the  complainant  insists  that,  though  the 
bonds  are  void,  the  city  is  bound,  ex  cequo  et  bono,  to  return  the 
money  it  received  for  them.  It  therefore  prays  for  a  decree  against 
the  city  for  the  amount  of  the  money  so  received. 

There  are  two  objections  to  this  proposition:  1.  If  the  city  is 
liable  for  this  money,  an  action  at  law  is  the  appropriate  remedy. 
The  action  for  money  had  and  received  to  plaintiffs'  use  is  the  usual 
and  adequate  remedy  in  such  cases  where  the  claim  is  well  founded, 
and  the  judgment  at  law  would  be  the  exact  equivalent  of  what  is 
prayed  for  in  this  bill,  namely,  a  decree  for  the  amount  against  the 
city,  to  be  paid  within  the  time  fixed  by  it  for  ulterior  proceedings 

]7 


258  LITCHFIELD    V.   BALLOU. 

In  this  view  the  present  bill  fails  for  want  of  equitable  jurisdiction. 

2.  But  there  is  no  more  reason  for  a  recovery  on  the  implied 
contract  to  repay  the  money,  than  on  the  express  contract  found  in 
the  bonds. 

The  language  of  the  Constitution  is  that  no  city,  &c.,  "  shall  be  al- 
lowed to  become  indebted  in  any  manner  or  for  any  purp>ose  to  ar. 
amount,  including  existing  indebtedness,  in  the  aggregate  exceeding 
five  per  centum  on  the  value  of  its  taxable  property."  It  shall  not 
become  indebted.  Shall  not  incur  any  pecuniary  liability.  It  shall 
not  do  this  in  any  manner.  Neither  by  bonds,  nor  notes,  nor  by 
express  or  implied  promises.  Nor  shall  it  be  done  lor  any  pnrpose. 
No  matter  how  urgent,  how  useful,  how  unanimous  the  wish.  There 
etands  the  existing  indebtedness  to  a  given  amount  in  relation  to  the 
sources  of  payment  as  an  impassable  obstacle  to  the  creation  of  any 
further  debt,  in  any  manner,  or  for  any  purpose  whatever. 

If  this  prohibition  is  worth  anything  it  is  as  effectual  against  the 
implied  as  the  express  promise,  and  is  as  binding  in  a  court  of  chan- 
cery as  a  court  of  law. 

Counsel  for  appellee  in  their  brief,  recognizing  the  difficulty  here 
pointed  out,  present  their  view  of  the  case  in  the  following  language: 

"  The  theory  of  relief  assumed  by  the  bill  is,  that  notwithstanding 
the  bonds  were  wholly  invalid,  and  no  suit  at  law  could  be  success- 
fully maintained  either  upon  the  bonds  or  upon  any  contract  as  such 
growing  out  of  the  bonds,  yet  as  the  City  of  Litchfield  is  in  posses- 
sion of  the  money  received  for  the  bonds,  or,  which  is  the  same 
thing,  its  equivalent  in  property  identified  as  having  been  procured 
with  this  money  and  having  repudiated  and  disclaimed  its  liability  in 
respect  of  the  bonds,  it  must,  upon  well  established  equitable  princi- 
ples, restore  to  the  complainants  what  it  actually  received,  or  at  least 
so  much  of  what  it  received  as  is  shown  now  to  be  in  its  possession 
and  in  its  power  to  restore." 

If  such  be  the  theory  of  the  bill,  the  decree  of  the  court  is  quite 
unwarranted  by  it.  The  money  received  by  the  city  from  Ballon  has 
long  passed  out  of  its  possession,  and  cannot  be  restored  to  com- 
plainant. Neither  the  specific  money  nor  any  other  money  is  to  be 
found  in  the  safe  of  the  city  or  anywhere  else  under  its  control.  And 
the  decree  of  the  court,  so  far  from  attempting  to  restore  the  specific 
money,  declares  that  there  is  due  from  the  City  of  Litchfield  to  com- 
plainants a  sum  of  money,  not  that  original  money,  but  a  sum  equal 
in  amount  to  the  bonds  and  interest  on  them  from  the  day  of  their 
issue.  Is  this  a  decree  to  return  the  identical  money  or  property 
received,  or  is  it  a  decree  to  pay  as  on  an  implied  contract  the  sum 
received,  with  interest  for  its  use? 

As  regards  the  water  works,  into  which  it  is  said  the  money  was 
transmuted;  if  the  theory  of  counsel  is  correct,  the  water  works 
should  have  been  delivered  up  to  plaintiffs  as  representing  their 
money,  as  property  which  they  have  purchased,  and  which,  since  the 


LITCHFIELD   V.   BALLOU.  259 

contract  has  been  declared  void,  is  their  property^  as  representing 
their  money.  In  this  view  the  restoration  to  complainants  of  the 
property  which  represents  their  money  puts  an  end  to  obligations  on 
both  sides  growing  out  of  the  transaction.  The  complainants, 
having  recovered  what  was  theirs,  have  no  further  claim  on  the  city. 
The  latter  having  discharged  its  trust  by  returning  what  complainant 
has  elected  to  claim  as  his  own,  is  no  longer  liable  for  the  money  or 
any  part  of  it. 

But  here  also  the  decree  departs  from  what  is  now  asserted  to  be 
the  principle  of  the  bill.  Having  decreed  an  indebtedness  where  none 
can  exist,  and  declared  that  complainant  has  a  lien  on,  not  the  owner- 
ship of,  the  water  works,  it  directs  a  sale  of  the  water  works  for  the 
payment  of  this  debt  and  the  satisfaction  of  this  lien. 

If  this  be  a  mode  of  pursuing  and  reclaiming  specific  property 
into  which  money  has  been  transmuted,  it  is  a  new  mode.  If  the 
theory  of  appellee's  counsel  be  true,  there  is  no  lien  on  the  property. 
There  is  no  debt  to  be  secured  by  a  lien.  That  theory  discards  the 
idea  of  a  debt,  and  pursues  the  money  into  the  property,  and  seeks 
the  property,  not  as  the  property  of  the  city  to  be  sold  to  pay  a  debt, 
but  as  the  property  of  complainant,  into  which  It  is  money,  not  the 
city's,  has  been  invested,  for  the  reason  that  there  was  no  debt  created 
by  the  transaction. 

The  money  received  on  the  bonds  having  been  expended,  with  other 
funds  raised  by  taxation,  in  erecting  the  water  works  of  the  city,  to 
impose  the  amount  thereof  as  a  lien  upon  these  public  works  would  be 
equally  a  violation  of  the  constitutional  prohibition,  as  to  raise 
against  the  city  an  implied  assumpsit  for  money  had  and  received. 
The  holders  of  the  bonds  and  agents  of  the  city  are  participes  criminis 
in  the  act  of  violating  that  prohibition,  and  equity  will  no  more  raise 
a  resulting  trust  in  favor  of  the  bondholders  than  the  law  will  raise 
an  implied  assumpsit  against  a  public  policy  so  strongly  declared. 

But  there  is  a  reason  why  even  this  cannot  be  done. 

Leaving  out  of  view  the  question  of  tracing  complainants'  money 
into  these  works,  it  is  very  certain  that  there  is  other  money  besides 
theirs  in  the  same  property.  The  land  on  which  these  works  are 
constructed  was  bought  and  paid  for  before  the  bonds  were  issued  or 
voted.  The  streets  through  which  the  pipes  are  laid  is  public  prop- 
erty into  which  no  money  of  the  complainants  entered.  Much,  also, 
of  the  expense  of  construction  was  paid  by  taxation  or  other  resources 
of  the  cit}'.  How  much  cannot  be  known  with  certainty,  because, 
though  the  officers  of  the  city  testify  that  on  the  books  a  separate 
water-works  account  was  kept,  there  is  no  evidence  that  the  funds 
which  went  to  build  these  works  are  traceable  by  those  books  to  their 
source  in  any  instance. 

If  the  complainants  are  after  the  money  they  let  the  cit}' 
must  clearly  identify  the  money,  or  the  fund,  or  other  pi 
represents  that  money,  in  such  a  manner  that  it  can  be  reclaimed  and 


nty  have,  they     \ 
)roperty  which     \ 

1-  ! J ^  ' 


260  LITCHFIELD   V.   BALLOU. 

delivered  without  taking  other  property  with    it,  or   injuring  other 
persons  or  interfering  with  others'  rights. 

It  is  the  consciousness  that  this  cannot  be  done  which  caused  the 
court  and  counsel  to  resort  to  the  idea  of  a  debt  and  a  lien  which  can- 
not be  sustained.  A  lien  of  a  person  on  his  own  property,  which  is 
and  has  always  been  his,  in  favor  of  himself,  is  a  novelty  which 
only  the  necessities  of  this  case  could  suggest. 

Another  objection  to  this  assertion  of  a  right  to  the  property  is, 
that  the  bondholders,  each  of  whom  must  hold  a  part  of  whatever 
equity  there  is  to  the  property,  are  numerous  and  scattered,  and  the 
relative  amount  of  the  interest  of  each  in  this  property  could  hardly 
be  correctly  ascertained.  The  property  itself  cannot  be  divided ;  its 
value  consists  in  its  unity  as  a  system  of  water  works  for  the  city. 
Without  the  land  and  the  use  of  the  streets,  the  value  of  the  remainder 
of  the  plant  is  gone.  In  these  complainants  can  have  no  equity. 
Yhe  decree  of  the  court  is  reversed  and  the  case  remanded^  icith  direc 

tions  to  disyniss  the  bill. 

Mr.  Justice  Harlan  dissented. 


SCHOOL  OT  LAW  LlBRXlFlT 
UNIVERSITY  OF  CALIFORNIA 

w^  angi:lc3 


UC  SOUTHERN  REGIONAL  LIBRARY  FACILITY 


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